By Wendy Schneider, Esq.
You know the Federal Rules backwards and forwards, but it’s compliance with the local rules that really makes a civil litigator look like a pro to colleagues and clients, and leaves the opposition in the dust. In this ongoing LLRX series, the editorial team of SmartRules will give you the tools to navigate motion practice in these busy federal courts with ease and grace. We’ve outlined the key provisions and highlighted the pitfalls. Here’s what you really need to know about motion practice in the Eastern District of Texas.
Meet and Confer and Certificate of Conference Required for Most Motions
In the Eastern District of Texas the single most important rule to be aware of is that a personal conference is required before most motions may be filed. (In most United States District Courts, such a requirement exists only for discovery motions.) Local Rule 7(h) sets forth specific matters that must be discussed. Requirements differ for discovery and non-discovery motions. Participants must conduct the conference in good faith defined as: “honesty in one’s purpose to discuss meaningfully the dispute, freedom from intention to defraud or abuse the discovery process, and faithfulness to one’s obligation to secure information without court intervention.” With respect to discovery motions, the conference must be between the lead trial counsel and any local counsel for the movant, and the lead trial counsel and any local counsel for the non-movant. Attorneys who do not confer in good faith are subject to disciplinary action. E.D. Tex. Civ. P. 7(h). All motions subject to the conference requirement must be accompanied by a certificate at the end of the motion following the certificate of service. Local Rule 7(i) sets forth very specific requirements for the contents of the certificate. E.D. Tex. Civ. P. 7(i).
Electronic Filing Required in Most Cases, File in Searchable PDF Format
Like most United States District Courts, the Eastern District of Texas requires electronic filing for most cases. E.D. Tex. Civ. P. 5(a). If filed electronically, motions, responses, replies and proposed orders must be submitted in “searchable PDF” format. All other documents, including attachments and exhibits must be in “searchable PDF” form wherever possible. E.D. Tex. Civ. P. 7(a).
Response, Reply and Sur-Reply Briefing Schedule
Once you get past the conference and certificate requirements, you find that motion briefing in the Eastern District of Texas is unusual in 2 ways. First, sur-replies are specifically permitted. E.D. Tex. Civ. P. 7(f). (In most jurisdictions, sur-replies might be permitted if special permission is requested; in many they are specifically prohibited.) Second, 3 days are added to the time allowed to file response, reply and sur-reply papers, regardless of the manner of service. E.D. Tex. Civ. P. 6. Thus, a party opposing a motion has a total of 17 days from the date the motion was served to file a response (14 pursuant to Local Rule 7, and 3 pursuant to Local Rule 6), after which the court will consider the submitted motion for decision. E.D. Tex. Civ. P. 7(e); E.D. Tex. Civ. P. 6. The moving party may file a reply within 10 days after service of the response, and the opposing party may file a sur-reply within 10 days after service of the reply. E.D. Tex. Civ. P. 7(f); E.D. Tex. Civ. P. 6.
Page Limits—Dispositive and Non-Dispositive Motions, Provision Re Multiple Motions for Summary Judgment
As is the case in many United States District Courts, in the Eastern District of Texas there are different page limits depending on whether your motion is dispositive or non-dispositive. The page limit for a dispositive motions and responses to dispositive motions is 30 pages, 10 pages for replies and sur-replies (excluding attachments). E.D. Tex. Civ. P. 7(a)(1). An unusual feature of the Eastern District of Texas is that there is a total page limit applicable to multiple summary judgment motions. A party cannot file more than 60 pages of summary judgment motions, 60 pages of response to summary judgment motions, or 20 pages of replies or sur-replies to summary judgment motions. E.D. Tex. Civ. P. 7(a)(1). The limit for non-dispositive motions and responses is 15 pages, 5 pages for replies and sur-replies (excluding attachments). E.D. Tex. Civ. P. 7(a)(2).
Proposed Order Required in PDF Format
Another particular requirement in the Eastern District of Texas is that every motion and response be accompanied by a proposed order in searchable and editable PDF format for the judge’s signature. The proposed order must include the style and number of the cause, and must not include a date or signature block. E.D. Tex. Civ. P. 7(a). E.D. Tex. Civ. P. 7(d).
Hearings Permitted Only on Request
If you desire a hearing on a matter, you, (or opposing counsel) may request one, it will be allowed only in the presiding judge’s discretion. E.D. Tex. Civ. P. 7(g).
For more detailed information about specific types of motions in the Easter District of Texas visit the Eastern District of Texas SmartRules Guides.
 Among others, motions to dismiss, for judgment on the pleadings or for summary judgment are exempt from the conference requirement, as are pro se litigants (prisoner or non-prisoner). E.D. Tex. Civ. P. 7(i).