PRELIMINARY DRAFT - Proposed Amendments to the Federal

Prepared by the

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

August 2023

PRELIMINARY DRAFT

Proposed Amendments to the Federal Rules of Appellate,

Bankruptcy, and Civil Procedure

Request for Comments on Amendments to:

Appellate Rules

6 and 39;

Bankruptcy Rules 3002.1 and 8006; Official Forms 410, 410C13-

M1, 410C13-M1R, 410C13-N, 410C13-NR,

410C13-M2, and 410C13-M2R; and

Civil Rules

16, 26, and new Rule 16.1

Written Comments Due By

February 16, 2024

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

H. THOMAS BYRON III

SECRETARY

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO: The Bench, Bar, and Public

FROM: Honorable John D. Bates, Chair

Committee on Rules of Practice and Procedure

DATE: August 15, 2023

RE: Request for Comments on Proposed Amendments to Federal Rules and Forms

____________________________________________________________________________

The Judicial Conference Committee on Rules of Practice and Procedure (Standing

Committee) has approved for publication for public comment the following proposed amendments

to existing rules and forms, as well as one new rule:

• Appellate Rules 6 and 39;

• Bankruptcy Rules 3002.1 and 8006;

• Bankruptcy Official Forms 410, 410C13-M1, 410C13-M1R, 410C13-N, 410C13-

NR, 410C13-M2, and 410C13-M2R; and

• Civil Rules 16, 26, and new Rule 16.1.

The proposals, supporting materials, and instructions on submitting written comments are

posted on the Judiciary’s website at:

https://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment

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Memorandum to the Bench, Bar, and Public

Page 2

Opportunity to Submit Written Comments

Comments concerning the proposals must be submitted electronically no later than

February 16, 2024. Please note that comments are part of the official record and publicly

available.

Opportunity to Appear at Public Hearings

On the following dates, the advisory committees will conduct public hearings on the

proposals either virtually or in person:

• Appellate Rules on October 18, 2023, and January 24, 2024;

• Bankruptcy Rules on January 12, 2024, and January 19, 2024; and

• Civil Rules on October 16, 2023, January 16, 2024, and February 6, 2024.

If you wish to appear and present testimony regarding a proposed rule or form, you must

notify the office of Rules Committee Staff at least 30 days before the scheduled hearing by

emailing RulesCommittee_Secretary@ao.uscourts.gov. Hearings are subject to cancellation due

to lack of requests to testify.

At this time, the Standing Committee has only approved the proposals for publication and

comment. After the public comment period closes, all comments will be carefully considered by

the relevant advisory committee as part of its consideration of whether to proceed with a proposal.

Under the Rules Enabling Act, 28 U.S.C. §§ 2072-2077, if any of the published proposals

are later approved, with or without revision, by the relevant advisory committee, the next steps are

approval by the Standing Committee and the Judicial Conference, and then adoption by the

Supreme Court. If adopted by the Court and transmitted to Congress by May 1, 2025, absent

congressional action, the proposals would take effect on December 1, 2025.

If you have questions about the rulemaking process or pending rules amendments, please

contact the Rules Committee Staff at 202-502-1820 or visit https://www.uscourts.gov/rules-

policies.

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TABLE OF CONTENTS

Page

PART I: FEDERAL RULES OF APPELLATE

PROCEDURE

Excerpt from the Report of the Advisory Committee on

Appellate Rules (May 2023) ............................................................. 6

Rule 6. Appeal in a Bankruptcy Case ............................. 26

Rule 39. Costs ................................................................... 47

PART II: FEDERAL RULES OF BANKRUPTCY

PROCEDURE

Excerpt from the Report of the Advisory Committee on

Bankruptcy Rules (December 2022) ............................................... 54

Excerpt from the Report of the Advisory Committee on

Bankruptcy Rules (May 2023) ........................................................ 56

Rule 3002.1. Notice Relating to Claims Secured by a Security

Interest in the Debtor’s Principal Residence in

a Chapter 13 Case............................................... 61

Rule 8006. Request for Leave to Take a Direct Appeal to a

Court of Appeals After Certification ................. 80

Official Bankruptcy Forms

Form 410. Proof of Claim .................................................... 82

Form 410C13- Motion Under Rule 3002.1(f)(1) to Determine

M1 the Status of the Mortgage Claim ...................... 88

Form 410C13- Response to Motion Under Rule 3002.1(f)(1) to

M1R Determine the Status of the Mortgage Claim ..... 90

Form 410C13-N Trustee’s Notice of Payments Made .................. 93

Form 410C13- Response to Trustee’s Notice of Payments

NR Made ................................................................... 95

Form 410C13- Motion Under Rule 3002.1(g)(4) to Determine

M2 Final Cure and Payment of Mortgage Claim…...98

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TABLE OF CONTENTS

Page

Form 410C13- Response to Motion to Determine Final Cure

M2R and Payment of Mortgage Claim ..................... 100

PART III: FEDERAL RULES OF CIVIL PROCEDURE

Excerpt from the Report of the Advisory Committee on

Civil Rules (May 2023) ................................................................. 106

Rule 16. Pretrial Conferences; Scheduling; Management ... 120

Rule 16.1. Multidistrict Litigation .......................................... 123

Rule 26. Duty to Disclose; General Provisions Governing

Discovery .............................................................. 137

APPENDIX:

Procedures for Committees on Rules

of Practice and Procedure ............................................................ 142

List of Committee Members ........................................................ 147

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

H. THOMAS BYRON III

SECRETARY

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO: Hon. John D. Bates, Chair

Committee on Rules of Practice and Procedure

FROM: Judge Jay Bybee, Chair

Advisory Committee on Appellate Rules

RE: Report of the Advisory Committee on Appellate Rules

DATE: May 11, 2023

_____________________________________________________________________________

I. Introduction

The Advisory Committee on Appellate Rules met on Wednesday, March 29,

2023, in West Palm Beach, Florida. * * *

* * * * *

Revised to incorporate changes that were made by the Committee on Rules of Practice and

Procedure (Standing Committee) at its June 6, 2023 meeting.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

It also seeks publication of two proposed amendments, one to Rule 39, dealing

with costs on appeal, and one to Rule 6, dealing with appeals in bankruptcy cases.

(Part III of this report.)

* * * * *

III. Action Items for Approval for Publication

A. Costs on Appeal (21-AP-D)

Rule 39 governs costs on appeal. Some costs are taxable in the court of appeals,

while others are taxable in the district court. In City of San Antonio v. Hotels.com,

141 S. Ct. 1628 (2021), the Supreme Court held that Rule 39 does not permit a district

court to alter a court of appeals’ allocation of costs, even those costs that are taxed by

the district court. The Court also observed that “the current Rules and the relevant

statutes could specify more clearly the procedure that such a party should follow to

bring their arguments to the court of appeals.” Id. at 1638.

The Advisory Committee seeks publication of proposed amendments to Rule

39. The proposal is designed to accomplish several things:

First, it clarifies 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. It uses the term “allocated” for the

former and the term “taxed” for the latter. Rule 39(a) established default rules for the

allocation of costs; these default rules can be displaced by party agreement or court

order.

Second, it codifies the holding in Hotels.com, providing that the allocation of

costs by the court of appeals applies to both the costs taxable in the court of appeals

and the costs taxable in the district court.

Third, it responds to the need identified in Hotels.com for a clearer procedure

that a party should follow if it wants to ask the court of appeals to reconsider the

allocation of costs. It does this by providing for a motion for reconsideration of the

allocation. To prevent delay, it provides that the mandate must not be delayed while

awaiting determination of such a motion for reconsideration while making clear that

the court of appeals retains jurisdiction to decide the motion.

Fourth, it makes Rule 39’s structure more parallel. The current Rule lists the

costs taxable in the district court but not the costs taxable in the court of appeals.

The proposed amendment lists the costs taxable in the court of appeals.

The proposal does not, however, deal with one significant issue. Most costs on

appeal are modest. The Advisory Committee learned that some parties do not even

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

bother to file bills of costs because the price of lawyer time to do so exceeds the value

of the costs themselves. But one cost on appeal—indeed, the cost involved in

Hotels.com—can be quite significant: the premium paid for a supersedeas bond.

Because of the bond premium, the bill of costs in Hotels.com was for more than $2.3

million.

The Advisory Committee was unable to come up with a good way to make sure

that the judgment winner in the district court is aware of the cost of the supersedeas

bond early enough to ask the court of appeals to reallocate the costs. Allowing a party

to move for reallocation in the court of appeals after the bill of costs is filed in the

district court would mean that both courts are dealing with the same costs issue at

the same time. Creating a long period to seek reallocation in the court of appeals

would mean that the case would be less fresh in the judges’ minds and begin to look

like a wholly separate appeal. Requiring disclosure in the bill of costs filed in the

court of appeals would be odd because those costs are not sought in the court of

appeals. Plus, a party might forego the relatively minor costs taxable in the court of

appeals and care only about costs taxable in the district court. It would be possible to

have the court of appeals tax the costs itself, but that would be a major departure

from the principle, endorsed by the Supreme Court in Hotels.com, that the court

closest to the cost should tax it.

For this reason, the Appellate Rules Committee believes that the easiest and

most obvious time for disclosure is when the bond is before the district court for

approval. It has requested the Civil Rules Committee to consider amending Civil Rule

62 to require that disclosure.

Even without such an amendment to Civil Rule 62, however, the Appellate

Rules Committee believes that the following proposed amendment to Appellate Rule

39 is worthwhile and therefore asks the Standing Committee to publish it for public

comment. The proposal has been revised since the Advisory Committee’s March 2023

meeting in accordance with the suggestions of the style consultants.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

Rule 39. Costs 1

(a) Against Whom AssessedAllocating Costs Among the Parties. The 2

following rules apply to allocating costs among the parties unless the law 3

provides, the parties agree, or the court orders otherwise: 4

(1) if an appeal is dismissed, costs are taxed allocated against the appellant; 5

(2) if a judgment is affirmed, costs are taxed allocated against the appellant; 6

(3) if a judgment is reversed, costs are taxed allocated against the appellee; 7

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, 8

each party bears its own costs costs are taxed only as the court orders. 9

(b) Reconsideration. Once the allocation of costs is established by the entry of 10

judgment, a party may seek reconsideration of that allocation by filing a 11

motion in the court of appeals within 14 days after the entry of judgment. But 12

issuance of the mandate under Rule 41 must not be delayed awaiting a 13

determination of the motion. The court of appeals retains jurisdiction to decide 14

the motion after the mandate issues. 15

applies both to costs taxable in the court of appeals under (e) and to costs 17

taxable in district court under (f). 18

(b)(d) Costs For and Against the United States. Costs for or against the United 19

States, its agency, or officer will be assessed allocated under Rule 39(a) only if 20

authorized by law. 21

(e) Costs on Appeal Taxable in the Court of Appeals. 22

(1) Costs Taxable. The following costs on appeal are taxable in the court 23

of appeals for the benefit of the party entitled to costs: 24

(A) the production of necessary copies of a brief or appendix, or copies 25

of records authorized by Rule 30(f); 26

(B) the docketing fee; and 27

(c)(2) Costs of Copies. Each court of appeals must, by local rule, setfix the 29

maximum rate for taxing the cost of producing necessary copies of a brief 30

or appendix, or copies of records authorized by Rule 30(f). The rate must 31

not exceed that generally charged for such work in the area where the 32

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

clerk’s office is located and should encourage economical methods of 33

copying. 34

(d)(3) Bill of Costs; Objections; Insertion in Mandate. 35

(1)(A) A party who wants costs taxed in the court of appeals must—36

within 14 days after entry of judgment is entered—file with the 37

circuit clerk and serve an itemized and verified bill of those costs. 38

(2)(B) Objections must be filed within 14 days after service of the bill of 39

costs is served, unless the court extends the time. 40

(3)(C) The clerk must prepare and certify an itemized statement of costs 41

for insertion in the mandate, but issuance of the mandate must 42

not be delayed for taxing costs. If the mandate issues before costs 43

are finally determined, the district clerk must—upon the circuit 44

clerk’s request—add the statement of costs, or any amendment of 45

it, to the mandate. 46

(e)(f) Costs on Appeal Taxable in the District Court. The following costs on 47

appeal are taxable in the district court for the benefit of the party entitled to 48

costs under this rule: 49

(1) the preparation and transmission of the record; 50

(2) the reporter’s transcript, if needed to determine the appeal; 51

(3) premiums paid for a bond or other security to preserve rights pending 52

appeal; and 53

(4) the fee for filing the notice of appeal. 54

Committee Note 55

In City of San Antonio v. Hotels.com, 141 S. Ct. 1628 (2021), the Supreme Court 56

held that Rule 39 does not permit a district court to alter a court of appeals’ allocation 57

of the costs listed in subdivision (e) of that Rule. The Court also observed that “the 58

current Rules and the relevant statutes could specify more clearly the procedure that 59

such a party should follow to bring their arguments to the court of appeals.” Id. at 60

1638. The amendment does so. Stylistic changes are also made. 61

Subdivision (a). Both the heading and the body of the Rule are amended to 62

clarify that allocation of the costs among the parties is done by the court of appeals. 63

The court may allow the default rules specified in subdivision (a) to operate based on 64

the judgment, or it may allocate them differently based on the equities of the 65

situation. Subdivision (a) is not concerned with calculating the amounts owed; it is 66

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

concerned with who bears those costs, and in what proportion. The amendment also 67

specifies a default for mixed judgments: each party bears its own costs. 68

Subdivision (b). The amendment specifies a procedure for a party to ask the 69

court of appeals to reconsider the allocation of costs established pursuant to 70

subdivision (a). A party may do so by motion in the court of appeals within 14 days 71

after the entry of judgment. The mandate is not stayed pending resolution of this 72

motion, but the court of appeals retains jurisdiction to decide the motion after the 73

mandate issues. 74

Subdivision (c). Codifying the decision in Hotels.com, the amendment also 75

makes clear that the allocation of costs by the court of appeals governs the taxation 76

of costs both in the court of appeals and in the district court. 77

Subdivision (d). The amendment uses the word “allocated” to match 78

subdivision (a). 79

Subdivision (e). The amendment specifies which costs are taxable in the 80

court of appeals and clarifies that the procedure in that subdivision governs the 81

taxation of costs taxable in the court of appeals. The docketing fee, currently $500, is 82

established by the Judicial Conference of the United States pursuant to 28 U.S.C. § 83

1913. The reference to filing fees paid in the court of appeals is not a reference to the 84

$5 fee paid to the district court required by 28 U.S.C. § 1917 for filing a notice of 85

appeal from the district court to the court of appeals. Instead, the reference is to filing 86

fees paid in the court of appeals, such as the fee to file a notice of appeal from a 87

bankruptcy appellate panel. 88

Subdivision (f). The provisions governing costs taxable in the district court 89

are lettered (f) rather than (e). The filing fee referred to in this subdivision is the $5 90

fee required by 28 U.S.C. § 1917 for filing a notice of appeal from the district court to 91

the court of appeals. 92

B. Appeals in Bankruptcy Cases

The Advisory Committee on Bankruptcy Rules has asked the Advisory

Committee on Appellate Rules to consider amendments to Appellate Rule 6 dealing

with appeals in bankruptcy cases. Two different concerns led to this request.

Resetting time to appeal. The first concern involves resetting the time to

appeal in cases where a district court is exercising original jurisdiction in a

bankruptcy case. Federal Rule of Appellate Procedure 4(a)(4)(A) resets the time to

appeal if various post-judgment motions are timely made in the district court. To be

timely in an ordinary civil case, the motion must be made within 28 days of the

judgment. Fed. R. Civ. P. 50(b), 52(b), 59. But in a bankruptcy case, the equivalent

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

motions must be made within 14 days of the judgment. Fed. R. Bankr. P. 7052,

9015(c), 9023.

So what happens if a district court itself—rather than a bankruptcy court—

decides a bankruptcy proceeding in the first instance and a post-judgment motion is

made on the 20

day after judgment? Does the motion have resetting effect or not?

The Court of Appeals for the First Circuit has said no. In re Lac-Mégantic Train

Derailment Litigation, 999 F.3d 72, 84 (1

Cir. 2021). The Bankruptcy Rules and their

time limits apply to a bankruptcy case heard in the district court.

This result, while sensible, is not obvious from the text of the Federal Rules of

Appellate Procedure. That’s because Rule 6 provides:

(a) Appeal From a Judgment, Order, or Decree of a District

Court Exercising Original Jurisdiction in a Bankruptcy Case. An

appeal to a court of appeals from a final judgment, order, or decree of a

district court exercising jurisdiction under 28 U.S.C. §1334 is taken as

any other civil appeal under these rules.

And Rule 4(a)(4)(A) gives resetting effect to motions that are filed “within the time

allowed” by “the Federal Rules of Civil Procedure”—which is 28 days, not 14 days .

The Bankruptcy Rules Committee considered amending Bankruptcy Rules

7052, 9015(c), and 9023 to provide 28 days for the motions if the proceeding is heard

by the district court, but that would undermine the goal of expedition and disrupt the

uniformity of bankruptcy rules. It considered asking the Appellate Rules Committee

to consider amending Appellate Rule 4(a)(4)(A) to acknowledge the different timing

rules, but that would complicate an already quite complicated rule with material that

doesn’t apply to non-bankruptcy cases. It settled on asking the Appellate Rules

Committee to consider amending Appellate Rule 6(a)—the rule that deals with

bankruptcy appeals where the district court exercised original jurisdiction—to

acknowledge the different timing rules.

The Appellate Rules Committee agreed.

It proposes to 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 Note provides a table of the equivalent motions and the time

allowed under the current version of the applicable Bankruptcy Rule.

At the meeting, the Committee agreed in principle and asked the subcommittee to refine

the language and provide a Committee Note for its consideration by email. The subcommittee

did so, and the full Advisory Committee without dissent approved the proposal below.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

Direct appeals. The second concern involves direct appeals in bankruptcy

cases. Appeals in bankruptcy are governed by 28 U.S.C. § 158. The default rule for

appeals from an order of the bankruptcy court is that such appeals go either to the

district court for the district where the bankruptcy court is located or (in the circuits

that have established a bankruptcy appellate panel (BAP)) to the BAP for that circuit.

Under § 158, the losing party then has a further appeal as of right to the court of

appeals from a final judgment of the district court or BAP.

The bankruptcy appeal process thus creates a redundancy whenever an appeal

is taken to the court of appeals under § 158(d)(1), and the two-tiered procedure can

be quite time-consuming. That can be problematic in the bankruptcy context, where

quick resolution of the parties’ disputes is sometimes critical.

In response to these concerns, as part of the Bankruptcy Abuse Prevention and

Consumer Protection Act of 2005 (BAPCPA), Congress amended § 158(d) to provide

that, in certain circumstances, appeals may be taken directly from orders of the

bankruptcy court to the courts of appeals, bypassing the intervening appeal to the

district court or BAP. To do so, Congress added § 158(d)(2), which provides:

(A) The appropriate court of appeals shall have jurisdiction of appeals

described in the first sentence of subsection (a) if the bankruptcy court,

the district court, or the bankruptcy appellate panel involved, acting on

its own motion or on the request of a party to the judgment, order, or

decree described in such first sentence, or all the appellants and

appellees (if any) acting jointly, certify that—

(i) the judgment, order, or decree involves a question of law as

to which there is no controlling decision of the court of

appeals for the circuit or of the Supreme Court of the United

States, or involves a matter of public importance;

(ii) the judgment, order, or decree involves a question of law

requiring resolution of conflicting decisions; or

(iii) an immediate appeal from the judgment, order, or decree

may materially advance the progress of the case or

proceeding in which the appeal is taken;

and if the court of appeals authorizes the direct appeal of the judgment,

order, or decree.

(B) If the bankruptcy court, the district court, or the bankruptcy appellate

panel—

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

(i) on its own motion or on the request of a party, determines that a

circumstance specified in clause (i), (ii), or (iii) of subparagraph

(A) exists; or

(ii) receives a request made by a majority of the appellants and a

majority of appellees (if any) to make the certification described

in subparagraph (A);

then the bankruptcy court, the district court, or the bankruptcy

appellate panel shall make the certification described in subparagraph

(A).

the basis for the certification.

(D) An appeal under this paragraph does not stay any proceeding of the

bankruptcy court, the district court, or the bankruptcy appellate panel

from which the appeal is taken, unless the respective bankruptcy court,

district court, or bankruptcy appellate panel, or the court of appeals in

which the appeal is pending, issues a stay of such proceeding pending

the appeal.

(E) Any request under subparagraph (B) for certification shall be made not

later than 60 days after the entry of the judgment, order, or decree.

28 U.S.C. § 158(d)(2).

Under this statute, any order of the bankruptcy court—final or interlocutory—

can be certified for direct appeal to the court of appeals if it meets the remaining

statutory requirements. Those requirements are similar to, but looser than, the

standards for certification under 28 U.S.C. § 1292(b), which permits courts of appeals

to hear appeals of interlocutory orders of the district courts in certain circumstances.

Moreover, the certification can be made by the bankruptcy court, district court, BAP,

or the parties. Under the Bankruptcy Rules, even if a bankruptcy court order has

been certified for direct appeal to the court of appeals, the appellant must still file a

notice of appeal to the district court or BAP in order to render the certification

effective. As with § 1292(b), the court of appeals must also authorize the direct appeal.

Under this structure, a court of appeals’ decision to authorize a direct appeal

does not determine whether an appeal will go forward, but instead in what court the

appeal will be heard. The party asking that the appeal from the bankruptcy court be

heard directly in the court of appeals might be an appellee rather than an appellant.

Accordingly, the Bankruptcy Rules Committee seeks a clarifying amendment to

Bankruptcy Rule 8006(g) providing that any party to the appeal may file a request

that the court of appeals authorize a direct appeal:

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

(g) Request After Certification for a Court of Appeals To

Authorize a Direct Appeal.

Within 30 days after the certification has become effective under

(a), any party to the appeal may ask the court of appeals to authorize a

direct appeal by filing a petition with the circuit clerk in accordance with

Fed. R. App. P. 6(c).

Current Appellate Rule 6(c), which governs direct appeals, largely relies on

Rule 5, which governs appeals by permission. But the proposed amendment to the

Bankruptcy Rules revealed that Appellate Rule 5 is not a good fit for direct appeals

in bankruptcy cases. That’s because Rule 5 was designed for the situation in which

the court of appeals is deciding whether to allow an appeal at all. But in the direct

appeal context, that’s not the question. Instead, in the direct appeal context, there is

an appeal; the question is which court is going to hear that appeal.

More generally, experience with direct appeals shows considerable confusion

in applying the Appellate Rules. This is primarily due to the manner in which Rule

6(c) cross-references Rule 5 and to its failure to take into account that an appeal of

the bankruptcy court order in question is already proceeding in the district court or

BAP, which results in uncertainty about precisely what steps are necessary to perfect

an appeal after the court of appeals authorizes a direct appeal.

For these reasons, the Appellate Rules Committee proposes to overhaul Rule

6(c) and make 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. Rule 6(c) makes

Rule 5 inapplicable except to the extent provided for in other parts of Rule 6(c).

The proposed amendments also spell out in more detail how parties should

handle initial procedural steps in the court of appeals once authorization for a direct

appeal is granted, taking into account that an appeal from the same order will already

be pending in the district court or BAP. The proposed Rule 6(c)(2) permits any party

to the appeal to ask the court of appeals to authorize a direct appeal. It also adds

provisions governing contents of the petition, answer or cross-petition, oral argument,

form of papers, number of copies, and length limits. It also makes clear that no notice

of appeal to the court of appeals needs to be filed, and provides for calculating time,

notification of the order authorizing a direct appeal, and payment of fees. It adds a

provision governing stays pending appeal, makes clear that steps already taken in

A caveat: 28 U.S.C. § 158(a)(3) allows appeals from a bankruptcy court to a district court

(or BAP) of otherwise unappealable interlocutory orders with leave of court. Authorization of

a direct appeal under § 158(d)(2) subsumes leave to appeal. Fed. R. Bankr. P. 8004(e). (“If

leave to appeal an interlocutory order or decree is required under 28 U.S.C. § 158(a)(3), an

authorization of a direct appeal by the court of appeals under 28 U.S.C. § 158(d)(2) satisfies

the requirement.”).

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

pursuing the appeal need not be repeated, and provides for making the record

available to the circuit clerk. It requires all parties, not just the appellant or applicant

for direct appeal, to file a representation statement. Additional changes in language

are made to better match the relevant statutes.

None of these are intended to make major changes to existing procedures but

to clarify those procedures. The proposal has been revised since the Advisory

Committee’s March 2023 meeting in accordance with the suggestions of the style

consultants.

Rule 6. Appeal in a Bankruptcy Case or Proceeding 1

(a) Appeal From a Judgment, Order, or Decree of a District Court 2

Exercising Original Jurisdiction in a Bankruptcy Case or Proceeding. 3

An appeal to a court of appeals from a final judgment, order, or decree of a 4

district court exercising original jurisdiction in a bankruptcy case or 5

proceeding under 28 U.S.C. §1334 is taken as any other civil appeal under 6

these rules. But the reference in Rule 4(a)(4)(A) to the time allowed for motions 7

under certain Federal Rules of Civil Procedure must be read as a reference to 8

the time allowed for the equivalent motions under the applicable Federal Rule

of Bankruptcy Procedure, which may be shorter than the time allowed under 10

the Civil Rules. 11

(b) Appeal From a Judgment, Order, or Decree of a District Court or 12

Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a 13

Bankruptcy Case or Proceeding. 14

(1) Applicability of Other Rules. These rules apply to an appeal to a 15

court of appeals under 28 U.S.C. §158(d)(1) from a final judgment, order, 16

or decree of a district court or bankruptcy appellate panel exercising 17

appellate jurisdiction in a bankruptcy case or proceeding under 28 18

U.S.C. §158(a) or (b), but with these qualifications: 19

(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(c), 13–20, 22–23, and 24(b) do not 20

apply; 21

(B) the reference in Rule 3(c) to “Forms 1A and 1B in the Appendix of 22

Forms” must be read as a reference to Form 5; 23

court,” as used in any applicable rule, means “bankruptcy 25

appellate panel”; and 26

“Rule” was changed to “Rules” by the Standing Committee at its June 6, 2023 meeting.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

(D) in Rule 12.1, "district court" includes a bankruptcy court or 27

bankruptcy appellate panel. 28

(2) Additional Rules. In addition to the rules made applicable by Rule 29

6(b)(1), the following rules apply: 30

(A) Motion for Rehearing. 31

(i) If a timely motion for rehearing under Bankruptcy Rule 32

8022 is filed, the time to appeal for all parties runs from 33

the entry of the order disposing of the motion. A notice of 34

appeal filed after the district court or bankruptcy appellate 35

panel announces or enters a judgment, order, or decree—36

but before disposition of the motion for rehearing—37

becomes effective when the order disposing of the motion 38

for rehearing is entered. 39

(ii) If a party intends to challenge the order disposing of the 40

motion—or the alteration or amendment of a judgment, 41

order, or decree upon the motion—then the party, in 42

compliance accordance with Rules 3(c) and 6(b)(1)(B), must 43

file a notice of appeal or amended notice of appeal. The 44

notice or amended notice must be filed within the time 45

prescribed by Rule 4—excluding Rules 4(a)(4) and 4(b)—46

measured from the entry of the order disposing of the 47

motion. 48

(iii) No additional fee is required to file an amended notice. 49

(B) The record on appeal. 50

(i) Within 14 days after filing the notice of appeal, the 51

appellant must file with the clerk possessing the record 52

assembled in accordance with Bankruptcy Rule 8009—and 53

serve on the appellee—a statement of the issues to be 54

presented on appeal and a designation of the record to be 55

certified and made available to the circuit clerk. 56

(ii) An appellee who believes that other parts of the record are 57

necessary must, within 14 days after being served with the 58

appellant's designation, file with the clerk and serve on the 59

appellant a designation of additional parts to be included. 60

(iii) The record on appeal consists of: 61

• the redesignated record as provided above; 62

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

• the proceedings in the district court or bankruptcy 63

appellate panel; and 64

• a certified copy of the docket entries prepared by the 65

clerk under Rule 3(d). 66

(i) When the record is complete, the district clerk or 68

bankruptcy-appellate-panel clerk must number the 69

documents constituting the record and promptly make it 70

available to the circuit clerk. If the clerk makes the record 71

available in paper form, the clerk will not send documents 72

of unusual bulk or weight, physical exhibits other than 73

documents, or other parts of the record designated for 74

omission by local rule of the court of appeals, unless 75

directed to do so by a party or the circuit clerk. If unusually 76

bulky or heavy exhibits are to be made available in paper 77

form, a party must arrange with the clerks in advance for 78

their transportation and receipt. 79

(ii) All parties must do whatever else is necessary to enable the 80

clerk to assemble the record and make it available. When 81

the record is made available in paper form, the court of 82

appeals may provide by rule or order that a certified copy 83

of the docket entries be made available in place of the 84

redesignated record. But at any time during the appeal’s 85

pendency, any party may request at any time during the 86

pendency of the appeal that the redesignated record be 87

made available. 88

(D) Filing the Record. When the district clerk or bankruptcy-89

appellate-panel clerk has made the record available, the circuit 90

clerk must note that fact on the docket. The date as noted on the 91

docket serves as the filing date of the record. The circuit clerk 92

must immediately notify all parties of that the filing date. 93

Bankruptcy Court by Permission Authorization Under 28 U.S.C. § 95

158(d)(2). 96

(1) Applicability of Other Rules. These rules apply to a direct appeal 97

from a judgment, order, or decree of a bankruptcy court by permission 98

authorization under 28 U.S.C. § 158(d)(2), but with these qualifications: 99

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

(A) Rules 3–4, 5(a)(3) (except as provided in this subdivision (c)), 6(a), 100

6(b), 8(a), 8(c), 9–12, 13–20, 22–23, and 24(b) do not apply; and 101

(B) as used in any applicable rule, ‘‘district court’’ or ‘‘district clerk’’ 102

includes—to the extent appropriate—a bankruptcy court or 103

bankruptcy appellate panel or its clerk; and 104

as a reference to Rules 6(c)(2)(B) and (C). 106

(2) Additional Rules. In addition to the rules made applicable by (c)(1), 107

the following rules apply: 108

(A) Petition to Authorize a Direct Appeal. Within 30 days after a 109

certification of a bankruptcy court’s order for direct appeal to the 110

court of appeals under 28 U.S.C. § 158(d)(2) becomes effective 111

under Bankruptcy Rule 8006(a), any party to the appeal may ask 112

the court of appeals to authorize a direct appeal by filing a 113

petition with the circuit clerk under Bankruptcy Rule 8006(g). 114

(B) Contents of the Petition. The petition must include the 115

material required by Rule 5(b)(1) and an attached copy of: 116

(i) the certification; and 117

(ii) the notice of appeal of the bankruptcy court’s judgment, order, 118

or decree filed under Bankruptcy Rule 8003 or 8004. 119

governs an answer or cross-petition. Rule 5(b)(3) governs oral 121

argument. 122

(D) Form of Papers; Number of Copies; Length Limits. Rule 123

5(c) governs the required form, number of copies to be filed, and 124

length limits applicable to the petition and any answer or cross-125

petition. 126

(E) Notice of Appeal; Calculating Time. A notice of appeal to the 127

court of appeals need not be filed. The date when the order 128

authorizing the direct appeal is entered serves as the date of the 129

notice of appeal for calculating time under these rules. 130

(F) Notification of the Order Authorizing Direct Appeal; Fees; 131

Docketing the Appeal. 132

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

(i) When the court of appeals enters the order authorizing the 133

direct appeal, the circuit clerk must notify the bankruptcy 134

clerk and the district court clerk or bankruptcy-appellate-135

panel clerk of the entry. 136

(ii) Within 14 days after the order authorizing the direct 137

appeal is entered, the appellant must pay the bankruptcy 138

clerk any unpaid required fee, including: 139

 the fee required for the appeal to the district court 140

or bankruptcy appellate panel; and 141

 the difference between the fee for an appeal to the 142

district court or bankruptcy appellate panel and the 143

fee required for an appeal to the court of appeals. 144

(iii) The bankruptcy clerk must notify the circuit clerk once the 145

appellant has paid all required fees. Upon receiving the 146

notice, the circuit clerk must enter the direct appeal on the 147

docket. 148

(G) Stay Pending Appeal. Bankruptcy Rule 8007 applies to any 149

stay pending appeal. 150

(A)(H) The Record on Appeal. Bankruptcy Rule 8009 governs the 151

record on appeal. If a party has already filed a document or 152

completed a step required to assemble the record for the appeal 153

to the district court or bankruptcy appellate panel, the party need 154

not repeat that filing or step. 155

(B)(I) Making the Record Available. Bankruptcy Rule 8010 governs 156

completing the record and making it available. When the court of 157

appeals enters the order authorizing the direct appeal, the 158

bankruptcy clerk must make the record available to the circuit 159

clerk. 160

pending appeal. 162

163

(D)(J) Duties of the Circuit Clerk. When the bankruptcy clerk has 164

made the record available, the circuit clerk must note that fact on 165

the docket. The date as noted on the docket serves as the filing 166

date of the record. The circuit clerk must immediately notify all 167

parties of that the filing date. 168

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

(E)(K) Filing a Representation Statement. Unless the court of 169

appeals designates another time, within 14 days after entry of the 170

order granting permission to appeal authorizing the direct appeal 171

is entered, the attorney for each party to the appeal the attorney 172

who sought permission must file a statement with the circuit 173

clerk naming the parties that the attorney represents on appeal. 174

Committee Note 175

Subdivision (a). Minor stylistic and clarifying changes are made to 176

subdivision (a). In addition, subdivision (a) is amended to clarify that, when a district 177

court is exercising original jurisdiction in a bankruptcy case or proceeding under 28 178

U.S.C. § 1334, the time in which to file post-judgment motions that can reset the time 179

to appeal under Rule 4(a)(4)(A) is controlled by the Federal Rules of Bankruptcy 180

Procedure, rather than the Federal Rules of Civil Procedure. 181

The Bankruptcy Rules partially incorporate the relevant Civil Rules but in 182

some instances shorten the deadlines for motions set out in the Civil Rules. See Fed. 183

R. Bankr. P. 9015(c) (any renewed motion for judgment under Civil Rule 50(b) must 184

be filed within 14 days of entry of judgment); Fed. R. Bankr. P. 7052 (any motion to 185

amend or make additional findings under Civil Rule 52(b) must be filed within 14 186

days of entry of judgment); Fed. R. Bankr. P. 9023 (any motion to alter or amend the 187

judgment or for a new trial under Civil Rule 59 must be filed within 14 days of entry 188

of judgment). 189

Motions for attorney’s fees in bankruptcy cases or proceedings are governed by 190

Bankruptcy Rule 7054(b)(2)(A), which incorporates without change the 14-day 191

deadline set in Civil Rule 54(d)(2)(B). Under Appellate Rule 4(a)(4)(A)(iii), such a 192

motion resets the time to appeal only if the district court so orders pursuant to Civil 193

Rule 58(e), which is made applicable to bankruptcy cases and proceedings by 194

Bankruptcy Rule 7058. 195

Motions for relief under Civil Rule 60 in bankruptcy cases or proceedings are 196

governed by Bankruptcy Rule 9024. Appellate Rule 4(a)(4)(A)(vi) provides that a 197

motion for relief under Civil Rule 60 resets the time to appeal only if the motion is 198

made within the time allowed for filing a motion under Civil Rule 59. In a bankruptcy 199

case or proceeding, motions under Civil Rule 59 are governed by Bankruptcy Rule 200

9023, which, as noted above, requires such motions to be filed within 14 days of entry 201

of judgment. 202

Civil Rule Bankruptcy Rule Time Under Bankruptcy Rule

50(b) 9015(c) 14 days

52(b) 7052 14 days

59 9023 14 days

54(d)(2)(B) 7054(b)(2)(A) 14 days

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

60 9024 14 days

Of course, the Bankruptcy Rules may be amended in the future. If that 203

happens, the time allowed for the equivalent motions under the applicable 204

Bankruptcy Rule may change. 205

Subdivision (b). Minor stylistic and clarifying changes are made to the 206

header of subdivision (b) and to subdivision (b)(1). Subdivision (b)(1)(C) is amended 207

to correct the omission of the word “bankruptcy” from the phrase “bankruptcy 208

appellate panel.” Stylistic changes are made to subdivision (b)(2)(D).

209

Subdivision (c). Subdivision (c) was added to Rule 6 in 2014 to set out 210

procedures governing discretionary direct appeals from orders, judgments, or decrees 211

of the bankruptcy court to the court of appeals under 28 U.S.C. § 158(d)(2). 212

Typically, an appeal from an order, judgment, or decree of a bankruptcy court 213

may be taken either to the district court for the relevant district or, in circuits that 214

have established bankruptcy appellate panels, to the bankruptcy appellate panel for 215

that circuit. 28 U.S.C. § 158(a). Final orders of the district court or bankruptcy 216

appellate panel resolving appeals under § 158(a) are then appealable as of right to 217

the court of appeals under § 158(d)(1). 218

That two-step appeals process can be redundant and time-consuming and 219

could in some circumstances potentially jeopardize the value of a bankruptcy estate 220

by impeding quick resolution of disputes over disposition of estate assets. In the 221

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Congress 222

enacted 28 U.S.C. § 158(d)(2) to provide that, in certain circumstances, appeals may 223

be taken directly from orders of the bankruptcy court to the courts of appeals, 224

bypassing the intervening appeal to the district court or bankruptcy appellate panel. 225

Specifically, § 158(d)(2) grants the court of appeals jurisdiction of appeals from 226

any order, judgment, or decree of the bankruptcy court if (a) the bankruptcy court, 227

the district court, the bankruptcy appellate panel, or all parties to the appeal certify 228

that (1) “the judgment, order, or decree involves a question of law as to which there 229

is no controlling decision of the court of appeals for the circuit or of the Supreme Court 230

of the United States, or involves a matter of public importance”; (2) “the judgment, 231

order, or decree involves a question of law requiring resolution of conflicting 232

decisions”; or (3) “an immediate appeal from the judgment, order, or decree may 233

materially advance the progress of the case or proceeding in which the appeal is 234

taken” and (b) “the court of appeals authorizes the direct appeal of the judgment, 235

order, or decree.” 28 U.S.C. § 158(d)(2). 236

The Standing Committee removed the “(D)” from the citation for the subsection reference at its June 6,

2023 meeting.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

Bankruptcy Rule 8006 governs the procedures for certification of a bankruptcy 237

court order for direct appeal to the court of appeals. Among other things, Rule 8006 238

provides that, to become effective, the certification must be filed in the appropriate 239

court, the appellant must file a notice of appeal of the bankruptcy court order to the 240

district court or bankruptcy appellate panel, and the notice of appeal must become 241

effective. Fed. R. Bankr. P. 8006(a). Once the certification becomes effective under 242

Rule 8006(a), a petition seeking authorization of the direct appeal must be filed with 243

the court of appeals within 30 days. Id. 8006(g). 244

Rule 6(c) governs the procedures applicable to a petition for authorization of a 245

direct appeal and, if the court of appeals grants the petition, the initial procedural 246

steps required to prosecute the direct appeal in the court of appeals. 247

As promulgated in 2014, Rule 6(c) incorporated by reference most of Rule 5, 248

which governs petitions for permission to appeal to the court of appeals from 249

otherwise non-appealable district court orders. It has become evident over time, 250

however, that Rule 5 is not a perfect fit for direct appeals of bankruptcy court orders 251

to the courts of appeals. The primary difference is that Rule 5 governs discretionary 252

appeals from district court orders that are otherwise non-appealable, and an order 253

granting a petition for permission to appeal under Rule 5 thus initiates an appeal 254

that otherwise would not occur. By contrast, an order granting a petition to authorize 255

a direct appeal under Rule 6(c) means that an appeal that has already been filed and 256

is pending in the district court or bankruptcy appellate panel will instead be heard 257

in the court of appeals. As a result, it is not always clear precisely how to apply the 258

provisions of Rule 5 to a Rule 6(c) direct appeal. 259

The new amendments to Rule 6(c) are intended to address that problem by 260

making Rule 6(c) self-contained. Thus, Rule 6(c)(1) is amended to provide that Rule 5 261

is not applicable to Rule 6(c) direct appeals except as specified in Rule 6(c) itself. Rule 262

6(c)(2) is also amended to include the substance of applicable provisions of Rule 5, 263

modified to apply more clearly to Rule 6(c) direct appeals. In addition, stylistic and 264

clarifying amendments are made to conform to other provisions of the Appellate Rules 265

and Bankruptcy Rules and to ensure that all the procedures governing direct appeals 266

of bankruptcy court orders are as clear as possible to both courts and practitioners. 267

Subdivision (c)—Title. The title of subdivision (c) is amended to change 268

“Direct Review” to “Direct Appeal” and “Permission” to “Authorization,” to be 269

consistent with the language of 28 U.S.C. § 158(d)(2). In addition, the language “from 270

a Judgment, Order, or Decree of a Bankruptcy Court” is added for clarity and to be 271

consistent with other subdivisions of Rule 6. 272

Subdivision (c)(1). The language of the first sentence is amended to be 273

consistent with the title of subdivision (c). In addition, the list of rules in subdivision 274

(c)(1)(A) that are inapplicable to direct appeals is modified to include Rule 5, except 275

as provided in subdivision (c) itself. Subdivision (c)(1)(C), which modified certain 276

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

language in Rule 5 in the context of direct appeals, is therefore deleted. As set out in 277

more detail below, the provisions of Rule 5 that are applicable to direct appeals have 278

been added, with appropriate modifications to take account of the direct appeal 279

context, as new provisions in subdivision (c)(2). 280

Subdivision (c)(2). The language “to the rules made applicable by (c)(1)” is 281

added to the first sentence for consistency with other subdivisions of Rule 6. 282

Subdivision (c)(2)(A). Subdivision (c)(2)(A) is a new provision that sets out 283

the basic procedure and timeline for filing a petition to authorize a direct appeal in 284

the court of appeals. It is intended to be substantively identical to Bankruptcy Rule 285

8006(g), with minor stylistic changes made in light of the context of the Appellate 286

Rules. 287

Subdivision (c)(2)(B). Subdivision (c)(2)(B) is a new provision that specifies 288

the contents of a petition to authorize a direct appeal. It provides that, in addition to 289

the material required by Rule 5, the petition must include an attached copy of the 290

certification under § 158(d)(2) and a copy of the notice of appeal to the district court 291

or bankruptcy appellate panel. 292

Subdivision (c)(2)(C). Subdivision (c)(2)(C) is a new provision. For clarity, it 293

specifies that answers or cross-petitions are governed by Rule 5(b)(2) and oral 294

argument is governed by Rule 5(b)(3). 295

Subdivision (c)(2)(D). Subdivision (c)(2)(D) is a new provision. For clarity, 296

it specifies that the required form, number of copies to be filed, and length limits 297

applicable to the petition and any answer or cross-petition are governed by Rule 5(c). 298

Subdivision (c)(2)(E). Subdivision (c)(2)(E) is a new provision that 299

incorporates the substance of Rule 5(d)(2), modified to take into account that the 300

appellant will already have filed a notice of appeal to the district court or bankruptcy 301

appellate panel. It makes clear that a second notice of appeal to the court of appeals 302

need not be filed, and that the date of entry of the order authorizing the direct appeal 303

serves as the date of the notice of appeal for the purpose of calculating time under the 304

Appellate Rules. 305

Subdivision (c)(2)(F). Subdivision (c)(2)(F) is a new provision. It largely 306

incorporates the substance of Rules 5(d)(1)(A) and 5(d)(3), with some modifications. 307

Subdivision (c)(2)(F)(i) now requires that when the court of appeals enters an 308

order authorizing a direct appeal, the circuit clerk must notify the bankruptcy clerk 309

and the clerk of the district court or the clerk of the bankruptcy appellate panel of the 310

order. 311

Subdivision (c)(2)(F)(ii) requires that, within 14 days of entry of the order 312

authorizing the direct appeal, the appellant must pay the bankruptcy clerk any 313

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Appellate Rules

(revised July 14, 2023)

required filing or docketing fees that have not yet been paid. Thus, if the appellant 314

has not yet paid the required fee for the initial appeal to the district court or 315

bankruptcy appellate panel, the appellant must do so. In addition, the appellant 316

must pay the bankruptcy clerk the difference between the fee for the appeal to the 317

district court or bankruptcy appellate panel and the fee for an appeal to the court of 318

appeals, so that the appellant has paid the full fee required for an appeal to the court 319

of appeals. 320

Subdivision (c)(2)(F)(iii) then requires the bankruptcy clerk to notify the circuit 321

clerk that all fees have been paid, which triggers the circuit clerk’s duty to docket the 322

direct appeal. 323

Subdivision (c)(2)(G). Subdivision (c)(2)(G) was formerly subdivision 324

(c)(2)(C). It is substantively unchanged, continuing to provide that Bankruptcy Rule 325

8007 governs stays pending appeal, but reflects minor stylistic revisions. 326

Subdivision (c)(2)(H). Subdivision (c)(2)(H) was formerly subdivision 327

(c)(2)(A). It continues to provide that Bankruptcy Rule 8009 governs the record on 328

appeal, but adds a sentence clarifying that steps taken to assemble the record under 329

Bankruptcy Rule 8009 before the court of appeals authorizes the direct appeal need 330

not be repeated after the direct appeal is authorized. 331

Subdivision (c)(2)(I). Subdivision (c)(2)(I) was formerly subdivision (c)(2)(B). 332

It continues to provide that Bankruptcy Rule 8010 governs provision of the record to 333

the court of appeals. It adds a sentence clarifying that when the court of appeals 334

authorizes the direct appeal, the bankruptcy clerk must make the record available to 335

the court of appeals. 336

Subdivision (c)(2)(J). Subdivision (c)(2)(J) was formerly subdivision 337

(c)(2)(D). It is unchanged other than a stylistic change and being renumbered. 338

Subdivision (c)(2)(K). Subdivision (c)(2)(K) was formerly subdivision 339

(c)(2)(E). Because any party may file a petition to authorize a direct appeal, it is 340

modified to provide that the attorney for each party—rather than only the attorney 341

for the party filing the petition—must file a representation statement. In addition, 342

the phrase “granting permission to appeal” is changed to “authorizing the direct 343

appeal” to conform to the language used throughout the rest of subdivision (c), and a 344

stylistic change is made. 345

* * * * *

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Page 25 of 157

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 6. Appeal in a Bankruptcy Case or 1

Proceeding 2

(a) Appeal From a Judgment, Order, or Decree of a 3

District Court Exercising Original Jurisdiction in 4

a Bankruptcy Case or Proceeding. An appeal to a 5

court of appeals from a final judgment, order, or 6

decree of a district court exercising original 7

jurisdiction in a bankruptcy case or proceeding under 8

28 U.S.C. § 1334 is taken as any other civil appeal 9

under these rules. But the reference in 10

Rule 4(a)(4)(A) to the time allowed for motions 11

under certain Federal Rules of Civil Procedure must 12

be read as a reference to the time allowed for the 13

equivalent motions under the applicable Federal 14

New material is underlined in red; matter to be omitted

is lined through.

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2 FEDERAL RULES OF APPELLATE PROCEDURE

Rules of Bankruptcy Procedure, which may be 15

shorter than the time allowed under the Civil Rules. 16

(b) Appeal From a Judgment, Order, or Decree of a 17

District Court or Bankruptcy Appellate Panel 18

Exercising Appellate Jurisdiction in a 19

Bankruptcy Case or Proceeding. 20

(1) Applicability of Other Rules. These rules 21

apply to an appeal to a court of appeals under 22

28 U.S.C. § 158(d)(1) from a final judgment, 23

order, or decree of a district court or 24

bankruptcy appellate panel exercising 25

appellate jurisdiction in a bankruptcy case or 26

proceeding under 28 U.S.C. § 158(a) or (b), 27

but with these qualifications: 28

* * * * * 29

appellate panel, ‘‘district court,’’ as 31

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Page 27 of 157

FEDERAL RULES OF APPELLATE PROCEDURE 3

used in any applicable rule, means 32

‘‘bankruptcy appellate panel’’; and 33

* * * * * 34

(2) Additional Rules. In addition to the rules 35

made applicable by Rule 6(b)(1), the 36

following rules apply: 37

(A) Motion for Rehearing. 38

* * * * * 39

(ii) If a party intends to challenge 40

the order disposing of the 41

motion—or the alteration or 42

amendment of a judgment, 43

order, or decree upon the 44

motion—then the party, in 45

compliance accordance with 46

Rules 3(c) and 6(b)(1)(B), 47

must file a notice of appeal or 48

amended notice of appeal. 49

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4 FEDERAL RULES OF APPELLATE PROCEDURE

The notice or amended notice 50

must be filed within the time 51

prescribed by Rule 4—52

excluding Rules 4(a)(4) and 53

4(b)—measured from the 54

entry of the order disposing of 55

the motion. 56

* * * * * 57

* * * * * 59

(ii) All parties must do whatever 60

else is necessary to enable the 61

clerk to assemble the record 62

and make it available. When 63

the record is made available in 64

paper form, the court of 65

appeals may provide by rule 66

or order that a certified copy 67

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Page 29 of 157

FEDERAL RULES OF APPELLATE PROCEDURE 5

of the docket entries be made 68

available in place of the 69

redesignated record. But at 70

any time during the appeal’s 71

pendency, any party may 72

request at any time during the 73

pendency of the appeal that 74

the redesignated record be 75

made available. 76

(D) Filing the Record. When the district 77

clerk or bankruptcy-appellate-panel 78

clerk has made the record available, 79

the circuit clerk must note that fact on 80

the docket. The date as noted on the 81

docket serves as the filing date of the 82

record. The circuit clerk must 83

immediately notify all parties of that 84

the filing date. 85

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6 FEDERAL RULES OF APPELLATE PROCEDURE

or Decree of a Bankruptcy Court by Permission 87

Authorization Under 28 U.S.C. § 158(d)(2). 88

(1) Applicability of Other Rules. These rules 89

apply to a direct appeal from a judgment, 90

order, or decree of a bankruptcy court by 91

permission authorization under 28 U.S.C. 92

§ 158(d)(2), but with these qualifications: 93

(A) Rules 3–4, 5(a)(3) (except as 94

provided in this subdivision (c)), 6(a), 95

6(b), 8(a), 8(c), 9–12, 13–20, 22–23, 96

and 24(b) do not apply; and 97

(B) as used in any applicable rule, 98

‘‘district court’’ or ‘‘district clerk’’ 99

includes—to the extent appropriate—100

a bankruptcy court or bankruptcy 101

appellate panel or its clerk; and 102

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FEDERAL RULES OF APPELLATE PROCEDURE 7

12(c)’’ in Rule 5(d)(3) must be read 104

as a reference to Rules 6(c)(2)(B) and 105

(C). 106

(2) Additional Rules. In addition to the rules 107

made applicable by (c)(1), the following rules 108

apply: 109

(A) Petition to Authorize a Direct 110

Appeal. Within 30 days after a 111

certification of a bankruptcy court’s 112

order for direct appeal to the court of 113

appeals under 28 U.S.C. § 158(d)(2) 114

becomes effective under Bankruptcy 115

Rule 8006(a), any party to the appeal 116

may ask the court of appeals to 117

authorize a direct appeal by filing a 118

petition with the circuit clerk under 119

Bankruptcy Rule 8006(g). 120

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8 FEDERAL RULES OF APPELLATE PROCEDURE

(B) Contents of the Petition. The 121

petition must include the material 122

required by Rule 5(b)(1) and an 123

attached copy of: 124

(i) the certification; and 125

(ii) the notice of appeal of the 126

bankruptcy court’s judgment, 127

order, or decree filed under 128

Bankruptcy Rule 8003 or 129

8004. 130

Argument. Rule 5(b)(2) governs an 132

answer or cross-petition. Rule 5(b)(3) 133

governs oral argument. 134

(D) Form of Papers; Number of 135

Copies; Length Limits. Rule 5(c) 136

governs the required form, number of 137

copies to be filed, and length limits 138

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FEDERAL RULES OF APPELLATE PROCEDURE 9

applicable to the petition and any 139

answer or cross-petition. 140

(E) Notice of Appeal; Calculating 141

Time. A notice of appeal to the court 142

of appeals need not be filed. The date 143

when the order authorizing the direct 144

appeal is entered serves as the date of 145

the notice of appeal for calculating 146

time under these rules. 147

(F) Notification of the Order 148

Authorizing Direct Appeal; Fees; 149

Docketing the Appeal. 150

(i) When the court of appeals 151

enters the order authorizing 152

the direct appeal, the circuit 153

clerk must notify the 154

bankruptcy clerk and the 155

district court clerk or 156

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10 FEDERAL RULES OF APPELLATE PROCEDURE

bankruptcy-appellate-panel 157

clerk of the entry. 158

(ii) Within 14 days after the order 159

authorizing the direct appeal 160

is entered, the appellant must 161

pay the bankruptcy clerk any 162

unpaid required fee, 163

including: 164

• the fee required for the 165

appeal to the district court 166

or bankruptcy appellate 167

panel; and 168

• the difference between the 169

fee for an appeal to the 170

district court or 171

bankruptcy appellate 172

panel and the fee required 173

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FEDERAL RULES OF APPELLATE PROCEDURE 11

for an appeal to the court 174

of appeals. 175

(iii) The bankruptcy clerk must 176

notify the circuit clerk once 177

the appellant has paid all 178

required fees. Upon receiving 179

the notice, the circuit clerk 180

must enter the direct appeal on 181

the docket. 182

(G) Stay Pending Appeal. Bankruptcy 183

Rule 8007 applies to any stay pending 184

appeal. 185

(A)(H) The Record on Appeal. Bankruptcy 186

Rule 8009 governs the record on 187

appeal. If a party has already filed a 188

document or completed a step 189

required to assemble the record for 190

the appeal to the district court or 191

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12 FEDERAL RULES OF APPELLATE PROCEDURE

bankruptcy appellate panel, the party 192

need not repeat that filing or step. 193

(B)(I) Making the Record Available. 194

Bankruptcy Rule 8010 governs 195

completing the record and making it 196

available. When the court of appeals 197

enters the order authorizing the direct 198

appeal, the bankruptcy clerk must 199

make the record available to the 200

circuit clerk. 201

Rule 8007 applies to stays pending 203

appeal. 204

(D)(J) Duties of the Circuit Clerk. When 205

the bankruptcy clerk has made the 206

record available, the circuit clerk 207

must note that fact on the docket. The 208

date as noted on the docket serves as 209

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FEDERAL RULES OF APPELLATE PROCEDURE 13

the filing date of the record. The 210

circuit clerk must immediately notify 211

all parties of that the filing date. 212

(E)(K) Filing a Representation Statement. 213

Unless the court of appeals designates 214

another time, within 14 days after 215

entry of the order granting permission 216

to appeal authorizing the direct appeal 217

is entered, the attorney for each party 218

to the appeal the attorney who sought 219

permission must file a statement with 220

the circuit clerk naming the parties 221

that the attorney represents on appeal. 222

Committee Note 223

Subdivision (a). Minor stylistic and clarifying 224

changes are made to subdivision (a). In addition, 225

subdivision (a) is amended to clarify that, when a district 226

court is exercising original jurisdiction in a bankruptcy case 227

or proceeding under 28 U.S.C. § 1334, the time in which to 228

file post-judgment motions that can reset the time to appeal 229

under Rule 4(a)(4)(A) is controlled by the Federal Rules of 230

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14 FEDERAL RULES OF APPELLATE PROCEDURE

Bankruptcy Procedure, rather than the Federal Rules of Civil 231

Procedure. 232

The Bankruptcy Rules partially incorporate the 233

relevant Civil Rules but in some instances shorten the 234

deadlines for motions set out in the Civil Rules. See Fed. R. 235

Bankr. P. 9015(c) (any renewed motion for judgment under 236

Civil Rule 50(b) must be filed within 14 days of entry of 237

judgment); Fed. R. Bankr. P. 7052 (any motion to amend or 238

make additional findings under Civil Rule 52(b) must be 239

filed within 14 days of entry of judgment); Fed. R. Bankr. P. 240

9023 (any motion to alter or amend the judgment or for a 241

new trial under Civil Rule 59 must be filed within 14 days 242

of entry of judgment). 243

Motions for attorney’s fees in bankruptcy cases or 244

proceedings are governed by Bankruptcy Rule 245

7054(b)(2)(A), which incorporates without change the 14-246

day deadline set in Civil Rule 54(d)(2)(B). Under Appellate 247

Rule 4(a)(4)(A)(iii), such a motion resets the time to appeal 248

only if the district court so orders pursuant to Civil Rule 249

58(e), which is made applicable to bankruptcy cases and 250

proceedings by Bankruptcy Rule 7058. 251

Motions for relief under Civil Rule 60 in bankruptcy 252

cases or proceedings are governed by Bankruptcy Rule 253

9024. Appellate Rule 4(a)(4)(A)(vi) provides that a motion 254

for relief under Civil Rule 60 resets the time to appeal only 255

if the motion is made within the time allowed for filing a 256

motion under Civil Rule 59. In a bankruptcy case or 257

proceeding, motions under Civil Rule 59 are governed by 258

Bankruptcy Rule 9023, which, as noted above, requires such 259

motions to be filed within 14 days of entry of judgment. 260

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FEDERAL RULES OF APPELLATE PROCEDURE 15

Civil Rule Bankruptcy

Rule

Time Under

Bankruptcy Rule

50(

) 9015(c) 14 da

52(b) 7052 14 da

59 9023 14 da

54(d)(2)(B) 7054(b)(2)(A) 14 da

60 9024 14 da

Of course, the Bankruptcy Rules may be amended in 261

the future. If that happens, the time allowed for the 262

equivalent motions under the applicable Bankruptcy Rule 263

may change. 264

Subdivision (b). Minor stylistic and clarifying 265

changes are made to the header of subdivision (b) and to 266

subdivision (b)(1). Subdivision (b)(1)(C) is amended to 267

correct the omission of the word “bankruptcy” from the 268

phrase “bankruptcy appellate panel.” Stylistic changes are 269

made to subdivision (b)(2). 270

Subdivision (c). Subdivision (c) was added to Rule 271

6 in 2014 to set out procedures governing discretionary 272

direct appeals from orders, judgments, or decrees of the 273

bankruptcy court to the court of appeals under 28 U.S.C. § 274

158(d)(2). 275

Typically, an appeal from an order, judgment, or 276

decree of a bankruptcy court may be taken either to the 277

district court for the relevant district or, in circuits that have 278

established bankruptcy appellate panels, to the bankruptcy 279

appellate panel for that circuit. 28 U.S.C. § 158(a). Final 280

orders of the district court or bankruptcy appellate panel 281

resolving appeals under § 158(a) are then appealable as of 282

right to the court of appeals under § 158(d)(1). 283

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16 FEDERAL RULES OF APPELLATE PROCEDURE

That two-step appeals process can be redundant and 284

time-consuming and could in some circumstances 285

potentially jeopardize the value of a bankruptcy estate by 286

impeding quick resolution of disputes over disposition of 287

estate assets. In the Bankruptcy Abuse Prevention and 288

Consumer Protection Act of 2005, Congress enacted 28 289

U.S.C. § 158(d)(2) to provide that, in certain circumstances, 290

appeals may be taken directly from orders of the bankruptcy 291

court to the courts of appeals, bypassing the intervening 292

appeal to the district court or bankruptcy appellate panel. 293

Specifically, § 158(d)(2) grants the court of appeals 294

jurisdiction of appeals from any order, judgment, or decree 295

of the bankruptcy court if (a) the bankruptcy court, the 296

district court, the bankruptcy appellate panel, or all parties to 297

the appeal certify that (1) “the judgment, order, or decree 298

involves a question of law as to which there is no controlling 299

decision of the court of appeals for the circuit or of the 300

Supreme Court of the United States, or involves a matter of 301

public importance”; (2) “the judgment, order, or decree 302

involves a question of law requiring resolution of conflicting 303

decisions”; or (3) “an immediate appeal from the judgment, 304

order, or decree may materially advance the progress of the 305

case or proceeding in which the appeal is taken” and (b) “the 306

court of appeals authorizes the direct appeal of the judgment, 307

order, or decree.” 28 U.S.C. § 158(d)(2). 308

Bankruptcy Rule 8006 governs the procedures for 309

certification of a bankruptcy court order for direct appeal to 310

the court of appeals. Among other things, Rule 8006 311

provides that, to become effective, the certification must be 312

filed in the appropriate court, the appellant must file a notice 313

of appeal of the bankruptcy court order to the district court 314

or bankruptcy appellate panel, and the notice of appeal must 315

become effective. Fed. R. Bankr. P. 8006(a). Once the 316

certification becomes effective under Rule 8006(a), a 317

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FEDERAL RULES OF APPELLATE PROCEDURE 17

petition seeking authorization of the direct appeal must be 318

filed with the court of appeals within 30 days. Id. 8006(g). 319

Rule 6(c) governs the procedures applicable to a 320

petition for authorization of a direct appeal and, if the court 321

of appeals grants the petition, the initial procedural steps 322

required to prosecute the direct appeal in the court of 323

appeals. 324

As promulgated in 2014, Rule 6(c) incorporated by 325

reference most of Rule 5, which governs petitions for 326

permission to appeal to the court of appeals from otherwise 327

non-appealable district court orders. It has become evident 328

over time, however, that Rule 5 is not a perfect fit for direct 329

appeals of bankruptcy court orders to the courts of appeals. 330

The primary difference is that Rule 5 governs discretionary 331

appeals from district court orders that are otherwise non-332

appealable, and an order granting a petition for permission 333

to appeal under Rule 5 thus initiates an appeal that otherwise 334

would not occur. By contrast, an order granting a petition to 335

authorize a direct appeal under Rule 6(c) means that an 336

appeal that has already been filed and is pending in the 337

district court or bankruptcy appellate panel will instead be 338

heard in the court of appeals. As a result, it is not always 339

clear precisely how to apply the provisions of Rule 5 to a 340

Rule 6(c) direct appeal. 341

The new amendments to Rule 6(c) are intended to 342

address that problem by making Rule 6(c) self-contained. 343

Thus, Rule 6(c)(1) is amended to provide that Rule 5 is not 344

applicable to Rule 6(c) direct appeals except as specified in 345

Rule 6(c) itself. Rule 6(c)(2) is also amended to include the 346

substance of applicable provisions of Rule 5, modified to 347

apply more clearly to Rule 6(c) direct appeals. In addition, 348

stylistic and clarifying amendments are made to conform to 349

other provisions of the Appellate Rules and Bankruptcy 350

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18 FEDERAL RULES OF APPELLATE PROCEDURE

Rules and to ensure that all the procedures governing direct 351

appeals of bankruptcy court orders are as clear as possible to 352

both courts and practitioners. 353

Subdivision (c)—Title. The title of subdivision (c) 354

is amended to change “Direct Review” to “Direct Appeal” 355

and “Permission” to “Authorization,” to be consistent with 356

the language of 28 U.S.C. § 158(d)(2). In addition, the 357

language “from a Judgment, Order, or Decree of a 358

Bankruptcy Court” is added for clarity and to be consistent 359

with other subdivisions of Rule 6. 360

Subdivision (c)(1). The language of the first 361

sentence is amended to be consistent with the title of 362

subdivision (c). In addition, the list of rules in subdivision 363

(c)(1)(A) that are inapplicable to direct appeals is modified 364

to include Rule 5, except as provided in subdivision (c) itself. 365

Subdivision (c)(1)(C), which modified certain language in 366

Rule 5 in the context of direct appeals, is therefore deleted. 367

As set out in more detail below, the provisions of Rule 5 that 368

are applicable to direct appeals have been added, with 369

appropriate modifications to take account of the direct 370

appeal context, as new provisions in subdivision (c)(2). 371

Subdivision (c)(2). The language “to the rules made 372

applicable by (c)(1)” is added to the first sentence for 373

consistency with other subdivisions of Rule 6. 374

Subdivision (c)(2)(A). Subdivision (c)(2)(A) is a 375

new provision that sets out the basic procedure and timeline 376

for filing a petition to authorize a direct appeal in the court 377

of appeals. It is intended to be substantively identical to 378

Bankruptcy Rule 8006(g), with minor stylistic changes made 379

in light of the context of the Appellate Rules. 380

Subdivision (c)(2)(B). Subdivision (c)(2)(B) is a 381

new provision that specifies the contents of a petition to 382

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FEDERAL RULES OF APPELLATE PROCEDURE 19

authorize a direct appeal. It provides that, in addition to the 383

material required by Rule 5, the petition must include an 384

attached copy of the certification under § 158(d)(2) and a 385

copy of the notice of appeal to the district court or 386

bankruptcy appellate panel. 387

Subdivision (c)(2)(C). Subdivision (c)(2)(C) is a 388

new provision. For clarity, it specifies that answers or cross-389

petitions are governed by Rule 5(b)(2) and oral argument is 390

governed by Rule 5(b)(3). 391

Subdivision (c)(2)(D). Subdivision (c)(2)(D) is a 392

new provision. For clarity, it specifies that the required form, 393

number of copies to be filed, and length limits applicable to 394

the petition and any answer or cross-petition are governed 395

by Rule 5(c). 396

Subdivision (c)(2)(E). Subdivision (c)(2)(E) is a 397

new provision that incorporates the substance of Rule 398

5(d)(2), modified to take into account that the appellant will 399

already have filed a notice of appeal to the district court or 400

bankruptcy appellate panel. It makes clear that a second 401

notice of appeal to the court of appeals need not be filed, and 402

that the date of entry of the order authorizing the direct 403

appeal serves as the date of the notice of appeal for the 404

purpose of calculating time under the Appellate Rules. 405

Subdivision (c)(2)(F). Subdivision (c)(2)(F) is a 406

new provision. It largely incorporates the substance of 407

Rules 5(d)(1)(A) and 5(d)(3), with some modifications. 408

Subdivision (c)(2)(F)(i) now requires that when the 409

court of appeals enters an order authorizing a direct appeal, 410

the circuit clerk must notify the bankruptcy clerk and the 411

clerk of the district court or the clerk of the bankruptcy 412

appellate panel of the order. 413

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20 FEDERAL RULES OF APPELLATE PROCEDURE

Subdivision (c)(2)(F)(ii) requires that, within 14 days 414

of entry of the order authorizing the direct appeal, the 415

appellant must pay the bankruptcy clerk any required filing 416

or docketing fees that have not yet been paid. Thus, if the 417

appellant has not yet paid the required fee for the initial 418

appeal to the district court or bankruptcy appellate panel, the 419

appellant must do so. In addition, the appellant must pay the 420

bankruptcy clerk the difference between the fee for the 421

appeal to the district court or bankruptcy appellate panel and 422

the fee for an appeal to the court of appeals, so that the 423

appellant has paid the full fee required for an appeal to the 424

court of appeals. 425

Subdivision (c)(2)(F)(iii) then requires the 426

bankruptcy clerk to notify the circuit clerk that all fees have 427

been paid, which triggers the circuit clerk’s duty to docket 428

the direct appeal. 429

Subdivision (c)(2)(G). Subdivision (c)(2)(G) was 430

formerly subdivision (c)(2)(C). It is substantively 431

unchanged, continuing to provide that Bankruptcy 432

Rule 8007 governs stays pending appeal, but reflects minor 433

stylistic revisions. 434

Subdivision (c)(2)(H). Subdivision (c)(2)(H) was 435

formerly subdivision (c)(2)(A). It continues to provide that 436

Bankruptcy Rule 8009 governs the record on appeal, but 437

adds a sentence clarifying that steps taken to assemble the 438

record under Bankruptcy Rule 8009 before the court of 439

appeals authorizes the direct appeal need not be repeated 440

after the direct appeal is authorized. 441

Subdivision (c)(2)(I). Subdivision (c)(2)(I) was 442

formerly subdivision (c)(2)(B). It continues to provide that 443

Bankruptcy Rule 8010 governs provision of the record to the 444

court of appeals. It adds a sentence clarifying that when the 445

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FEDERAL RULES OF APPELLATE PROCEDURE 21

court of appeals authorizes the direct appeal, the bankruptcy 446

clerk must make the record available to the court of appeals. 447

Subdivision (c)(2)(J). Subdivision (c)(2)(J) was 448

formerly subdivision (c)(2)(D). It is unchanged other than a 449

stylistic change and being renumbered. 450

Subdivision (c)(2)(K). Subdivision (c)(2)(K) was 451

formerly subdivision (c)(2)(E). Because any party may file a 452

petition to authorize a direct appeal, it is modified to provide 453

that the attorney for each party—rather than only the 454

attorney for the party filing the petition—must file a 455

representation statement. In addition, the phrase “granting 456

permission to appeal” is changed to “authorizing the direct 457

appeal” to conform to the language used throughout the rest 458

of subdivision (c), and a stylistic change is made. 459

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PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 39. Costs 1

(a) Against Whom Assessed Allocating Costs Among 2

the Parties. The following rules apply to allocating costs 3

among the parties unless the law provides, the parties agree, 4

or the court orders otherwise: 5

(1) if an appeal is dismissed, costs are taxed 6

allocated against the appellant, unless the 7

parties agree otherwise; 8

(2) if a judgment is affirmed, costs are taxed 9

allocated against the appellant; 10

(3) if a judgment is reversed, costs are taxed 11

allocated against the appellee; 12

(4) if a judgment is affirmed in part, reversed in 13

part, modified, or vacated, each party bears 14

New material is underlined in red; matter to be omitted

is lined through.

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2 FEDERAL RULES OF APPELLATE PROCEDURE

its own costs costs are taxed only as the court 15

orders. 16

(b) Reconsideration. Once the allocation of costs is 17

established by the entry of judgment, a party may 18

seek reconsideration of that allocation by filing a 19

motion in the court of appeals within 14 days after 20

the entry of judgment. But issuance of the mandate 21

under Rule 41 must not be delayed awaiting a 22

determination of the motion. The court of appeals 23

retains jurisdiction to decide the motion after the 24

mandate issues. 25

allocation of costs applies both to costs taxable in the 27

court of appeals under (e) and to costs taxable in 28

district court under (f). 29

(b)(d) Costs For and Against the United States. Costs for 30

or against the United States, its agency, or officer 31

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FEDERAL RULES OF APPELLATE PROCEDURE 3

will be assessed allocated under Rule 39(a) only if 32

authorized by law. 33

(e) Costs on Appeal Taxable in the Court of Appeals. 34

(1) Costs Taxable. The following costs on 35

appeal are taxable in the court of appeals for 36

the benefit of the party entitled to costs: 37

(A) the production of necessary copies of 38

a brief or appendix, or copies of 39

records authorized by Rule 30(f); 40

(B) the docketing fee; and 41

appeals. 43

by local rule, set fix the maximum rate for 45

taxing the cost of producing necessary copies 46

of a brief or appendix, or copies of records 47

authorized by Rule 30(f). The rate must not 48

exceed that generally charged for such work 49

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4 FEDERAL RULES OF APPELLATE PROCEDURE

in the area where the clerk’s office is located 50

and should encourage economical methods of 51

copying. 52

(d) (3) Bill of Costs: Objections; Insertion in 53

Mandate. 54

(1) (A) A party who wants costs taxed in the 55

court of appeals must—within 14 56

days after entry of judgment is 57

entered—file with the circuit clerk 58

and serve an itemized and verified bill 59

of those costs. 60

(2) (B) Objections must be filed within 14 61

days after service of the bill of costs 62

is served, unless the court extends the 63

time. 64

(3) (C) The clerk must prepare and certify an 65

itemized statement of costs for 66

insertion in the mandate, but issuance 67

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FEDERAL RULES OF APPELLATE PROCEDURE 5

of the mandate must not be delayed 68

for taxing costs. If the mandate issues 69

before costs are finally determined, 70

the district clerk must—upon the 71

circuit clerk’s request—add the 72

statement of costs, or any amendment 73

of it, to the mandate. 74

(e)(f) Costs on Appeal Taxable in the District Court. 75

The following costs on appeal are taxable in the 76

district court for the benefit of the party entitled to 77

costs under this rule: 78

* * * * *79

Committee Note 80

In City of San Antonio v. Hotels.com, 141 S. Ct. 1628 81

(2021), the Supreme Court held that Rule 39 does not permit 82

a district court to alter a court of appeals’ allocation of the 83

costs listed in subdivision (e) of that Rule. The Court also 84

observed that “the current Rules and the relevant statutes 85

could specify more clearly the procedure that such a party 86

should follow to bring their arguments to the court of 87

appeals….” Id. at 1638. The amendment does so. Stylistic 88

changes are also made. 89

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6 FEDERAL RULES OF APPELLATE PROCEDURE

Subdivision (a). Both the heading and the body of 90

the Rule are amended to clarify that allocation of the costs 91

among the parties is done by the court of appeals. The court 92

may allow the default rules specified in subdivision (a) to 93

operate based on the judgment, or it may allocate them 94

differently based on the equities of the situation. Subdivision 95

(a) is not concerned with calculating the amounts owed; it is 96

concerned with who bears those costs, and in what 97

proportion. The amendment also specifies a default for 98

mixed judgments: each party bears its own costs. 99

Subdivision (b). The amendment specifies a 100

procedure for a party to ask the court of appeals to reconsider 101

the allocation of costs established pursuant to subdivision 102

(a). A party may do so by motion in the court of appeals 103

within 14 days after the entry of judgment. The mandate is 104

not stayed pending resolution of this motion, but the court of 105

appeals retains jurisdiction to decide the motion after the 106

mandate issues. 107

Subdivision (c). Codifying the decision in 108

Hotels.com, the amendment also makes clear that the 109

allocation of costs by the court of appeals governs the 110

taxation of costs both in the court of appeals and in the 111

district court. 112

Subdivision (d). The amendment uses the word 113

“allocated” to match subdivision (a). 114

Subdivision (e). The amendment specifies which 115

costs are taxable in the court of appeals and clarifies that the 116

procedure in that subdivision governs the taxation of costs 117

taxable in the court of appeals. The docketing fee, currently 118

$500, is established by the Judicial Conference of the United 119

States pursuant to 28 U.S.C. § 1913. The reference to filing 120

fees paid in the court of appeals is not a reference to the $5 121

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FEDERAL RULES OF APPELLATE PROCEDURE 7

fee paid to the district court required by 28 U.S.C. § 1917 for 122

filing a notice of appeal from the district court to the court of 123

appeals. Instead, the reference is to filing fees paid in the 124

court of appeals, such as the fee to file a notice of appeal 125

from a bankruptcy appellate panel. 126

Subdivision (f). The provisions governing costs 127

taxable in the district court are lettered (f) rather than (e). 128

The filing fee referred to in this subdivision is the $5 fee 129

required by 28 U.S.C. § 1917 for filing a notice of appeal 130

from the district court to the court of appeals. 131

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Excerpt from the December 5, 2022 Report of the Advisory Committee on Bankruptcy Rules

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

H. THOMAS BYRON III

SECRETARY

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

REBECCA BUEHLER CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO: Honorable John D. Bates, Chair

Standing Committee on Rules of Practice and Procedure

FROM: Honorable Rebecca B. Connelly, Chair

Advisory Committee on Bankruptcy Rules

RE: Report of the Advisory Committee on Bankruptcy Rules

DATE: December 5, 2022

I. Introduction

The Advisory Committee on Bankruptcy Rules met in Washington, D.C., on September

15, 2022. One Committee member participated remotely by means of Microsoft Teams; the rest

of the Committee met in person. * * *

At the meeting, the Advisory Committee voted to seek publication for comment of an

amendment to Official Form 410. Part II of this report presents that action item.

* * * * *

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Excerpt from the December 5, 2022 Report of the Advisory Committee on Bankruptcy Rules

II. Action Item

Item for Publication

The Advisory Committee recommends that an amendment to Official Form 410

(Proof of Claim) be published for public comment in August 2023. The form as proposed for

amendment appears in the appendix to this report.

The proposed amendment would eliminate on the proof-of-claim form the language that

restricts use of a uniform claim identifier (“UCI”) to electronic payments in chapter 13. It would

allow the UCI to be used in cases filed under all chapters of the Bankruptcy Code and for all

payments whether or not electronic. Use of the UCI is entirely voluntary on the part of the creditor.

The amended language allows a creditor to list a UCI on the proof-of-claim form in any case if it

chooses to do so.

Part 1, Box 3, of Official Form 410 currently provides space for a “Uniform claim

identifier for electronic payments in chapter 13 (if you use one).” Dana C. McWay, chair of the

Administrative Office of the U.S. Courts’ Unclaimed Funds Expert Panel, recommended that the

quoted language be modified so that it is no longer limited to chapter 13. She explained that

“[c]ase trustees make payments to creditors in chapter 7 asset cases, chapter 12 cases, chapter 13

cases, and when acting also as a disbursing agent, in Subchapter V chapter 11 cases. Allowing

any creditor to provide this identifier can assist trustees in all case types to issue electronic

payments in lieu of paper checks.” Suggestion 22-BK-C at 1.

The Advisory Committee agreed with the suggestion, but on the recommendation of the

Forms Subcommittee, it voted to expand the amendment even further. Rather than simply

removing the words “in chapter 13,” the Advisory Committee concluded that the entire phrase

“for electronic payments in chapter 13” should be removed, finding no reason that the UCI could

not be used for paper checks as well as electronic payments. Indeed, the Advisory Committee

was informed that the UCI is currently being used for payments by check.

* * * * *

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Page 55 of 157

Excerpt from the May 17, 2023 Report of the Advisory Committee on Bankruptcy Rules

(revised July 13, 2023)

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

H. THOMAS BYRON III

SECRETARY

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO: Honorable John D. Bates, Chair

Standing Committee on Rules of Practice and Procedure

FROM: Honorable Rebecca B. Connelly, Chair

Advisory Committee on Bankruptcy Rules

RE: Report of the Advisory Committee on Bankruptcy Rules

DATE: May 17, 2023

I. Introduction

The Advisory Committee on Bankruptcy Rules met in West Palm Beach, Florida, on March

30, 2023. Two Committee members were unable to attend; the rest of the Committee met in

person. * * *

* * * * *

Revised to incorporate changes that were made during the June 6, 2023, meeting of the Committee on

Rules of Practice and Procedure.

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Page 56 of 157

Excerpt from the May 17, 2023 Report of the Advisory Committee on Bankruptcy Rules

(revised July 13, 2023)

The Advisory Committee also voted to seek republication for comment of amendments to

Bankruptcy Rule 3002.1 (Notice Relating to Claims Secured by a Security Interest in the Debtor’s

Principal Residence in a Chapter 13 Case) and related forms. Previously, at the fall 2022 meeting,

the Advisory Committee voted to seek publication for comment of proposed amendments to

Bankruptcy Rule 8006(g) (Request for Leave to Take a Direct Appeal to a Court of Appeals After

Certification).

Part II of this report presents those action items and is organized as follows:

* * * * *

B. Items for Publication

 Rule 3002.1;

 Rule 8006(g); and

 Official Forms 410C13-M1, 410C13-M1R, 410C13-N, 410C13-NR, 410C13-M2,

and 410C13-M2R.

* * * * *

B. Items for Publication

The Advisory Committee recommends that the following rule and form amendments

be published for public comment in August 2023. The rules and forms in this group appear in

Bankruptcy Appendix B.

Action Item 6. Rule 3002.1 (Notice Relating to Claims Secured by a Security Interest

in the Debtor’s Principal Residence in a Chapter 13 Case). In response to suggestions

submitted by the National Association of Chapter Thirteen Trustees and the American Bankruptcy

Institute’s Commission on Consumer Bankruptcy, the Advisory Committee proposed amendments

to Rule 3002.1 that were published for comment in 2021. The amendments were intended to

encourage a greater degree of compliance with the rule’s provisions and to provide a more straight-

forward and familiar procedure for determining the status of a mortgage claim at the end of a

chapter 13 case. The amended rule as published provided for a new midcase assessment of the

mortgage claim’s status in order to give the debtor an opportunity to cure any postpetition defaults

that might have occurred. Provisions were added to prescribe the effective date of late payment-

change notices and to provide more detailed provisions about notice of payment changes for home

equity lines of credit (“HELOC”). The assessment of the status of the mortgage at the end of a

chapter 13 case was changed from a notice to a motion procedure that would result in a binding

order.

Twenty-seven comments were submitted on the proposed amendments. They included a

letter from a group of 68 chapter 13 trustees who questioned whether there was a need for the

amendments. They were particularly concerned about the midcase review because they said that

it would impose an unnecessary burden on them and that the needed information about home

mortgages is already available. They and other trustees also contended that the new requirements

for the end-of-case motion would not work well in a case in which the debtor made mortgage

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Excerpt from the May 17, 2023 Report of the Advisory Committee on Bankruptcy Rules

(revised July 13, 2023)

payments directly to the servicer because the trustee would lack records about the postpetition

payments. The comments from some debtors’ attorneys, on the other hand, welcomed the

requirement of a midcase review. They pointed out that mortgage servicers’ records are often

inconsistent with trustees’ and debtors’ records and that an earlier opportunity to reconcile them

would be beneficial. The National Conference of Bankruptcy Judges, while stating that it did not

oppose the amendments, raised questions about the authority to promulgate several provisions. It

also questioned whether the benefits of a midcase assessment and the revised end-of-case

procedures were sufficient to outweigh the added burden on courts and parties imposed by the

provisions.

At the fall 2022 meeting and by email afterwards, the Advisory Committee approved

republication changes to the proposed Rule 3002.1 amendments in response to the comments.

Among the changes were the following:

 The provision for giving only annual notices of HELOC payment changes was made

optional. The provision is intended to be for the benefit of the claim holder, so if such a

claim holder prefers to provide notices more frequently, there would be no reason not to

allow it to do so.

 Significant changes were made to subdivision (f), which as published required a midcase

review of the status of the mortgage claim. As revised, it would be optional, not

mandatory; could be initiated by either the trustee or the debtor, not just the trustee; could

be sought at any time during the case, not just between 18 and 24 months after the petition

was filed; and would be initiated by a motion, not a notice. The claim holder would have

to respond to the motion only if it disagreed with the facts set forth in the motion, rather

than in all cases.

 Rather than starting with a motion by the trustee, as the published rule did, the end-of-

case procedure would, like the current rule, start with a notice by the trustee indicating

whether and in what amounts he or she had cured any prepetition arrearage and made

any payments to the claim holder that came due postpetition. Rather than being triggered

by the debtor’s final cure payment, the notice would have to be filed “within 45 days

after the debtor completes all payments due to the trustee” under the plan. As under the

current rule, the claim holder would be required to file a response to the notice.

 If thereafter the trustee or debtor wanted the court to determine whether the debtor had

cured all defaults and paid all required postpetition amounts, either one could file a

motion for a court determination.

 * * *

During the June 6, 2023 Standing Committee meeting, the Chair of the Advisory Committee withdrew a

proposed amendment to current Rule 3002.1(i)(2) (which would become proposed Rule 3002.1(h)(2)) that

would have specified that the relief awarded if a claim holder failed to provide information as required by

Rule 3002.1 could include “in appropriate circumstances, noncompensatory sanctions.” This proposed

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Excerpt from the May 17, 2023 Report of the Advisory Committee on Bankruptcy Rules

(revised July 13, 2023)

The Advisory Committee approved a few additional substantive and stylistic changes at

the spring meeting.

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.

Action Item 7. Rule 8006(g) (Request for Leave to Take a Direct Appeal to a Court

of Appeals After Certification). Rule 8006(g) currently requires that, within 30 days after the

date the certification becomes effective, “a request for permission to take a direct appeal to the

court of appeals must be filed with the circuit clerk in accordance with Fed. R. App. P. 6(c).” The

rule is written in the passive voice and does not specify who is supposed to file that request for

permission to take a direct appeal.

Bankruptcy Judge A. Benjamin Goldgar suggested that the rule be rewritten to clarify the

existing meaning, which he (and the Advisory Committee) believes is that any party to the

judgment, order, or decree can file the request for permission to take a direct appeal, not just the

appellant who initiated the appeal.

At the spring 2022 meeting of the Advisory Committee, the Subcommittee on Privacy,

Public Access, and Appeals recommended an amendment to Rule 8006(g) for publication. The

reporter to the Standing Committee was concerned that the revised Rule 8006(g) might not work

properly with Fed. R. App. P. 6(c)—which also addresses direct appeals from a bankruptcy court

to a court of appeals—and asked the reporters for the Bankruptcy Rules Committee and the

Appellate Rules Committee to work with their respective committees to ensure that the rules

worked in a coordinated fashion.

An amendment to Rule 8006(g) that was the product of that collaboration was approved by

the Advisory Committee at its fall 2022 meeting. Because the Appellate Rules Committee at its

fall meeting created a subcommittee to consider related amendments to Fed. R. App. P. 6(c) and

to report back at its spring meeting, the Advisory Committee decided to wait to seek approval from

the Standing Committee for publication of Rule 8006(g) until publication was also sought for

amendments to the appellate rule. The Appellate Rules Committee has now completed its work

and is presenting amendments to Fed. R. App. P. 6 at this meeting for publication.

Action Item 8. Official Forms 410C13-M1, 410C13-M1R, 410C13-N, 410C13-NR,

410C13-M2, and 410C13-M2R. In 2021 the Standing Committee published five forms drafted

to implement proposed amendments to Rule 3002.1 (Official Forms 410C13-1N, 410C13-1R,

410C13-10C, 410C13-10NC, 410C13-10R). The Advisory Committee deferred considering the

comments submitted on the forms until after it approved changes to the rule in response to

comments.

At the spring 2023 meeting, the Advisory Committee approved for publication 6 new forms

to implement the revised amendments to Rule 3002.1. The new forms no longer include a

change was withdrawn to allow for further consideration by the Advisory Committee and possible

resubmission later.

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Excerpt from the May 17, 2023 Report of the Advisory Committee on Bankruptcy Rules

(revised July 13, 2023)

mandatory midcase-trustee notice of the status of the mortgage. Instead, either the trustee or the

debtor may choose to file a motion to determine the status of the mortgage claim at any point

during the case prior to the trustee’s Final Notice of Payments Made. Official Form 410C13-M1

was drafted for that purpose. No distinction is made between cases in which the trustee makes

postpetition mortgage payments and those in which the debtor does so. The moving party—either

the trustee or debtor—must only provide the information that she has knowledge of. Official Form

410C13-M1R is the form for the claim holder’s response to that motion.

After the debtor completes all payments due to the trustee under a chapter 13 plan, the

trustee must file a notice of payments made on the mortgage. Official Form 410C13-N was drafted

for that purpose. The claim holder then must file a response, using Official Form 410C13-NR.

If either the trustee or debtor wants a final determination of the mortgage’s status at the

end of the case, he can file a Motion to Determine Final Cure and Payment, using Official Form

410C13-M2. The claim holder, if it disputes any facts in the motion, must then file a response,

using Official Form 410C13-M2R.

* * * * *

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PROPOSED AMENDMENTS TO THE FEDERAL

RULES OF BANKRUPTCY PROCEDURE

Rule 3002.1. Notice Relating to Chapter 13—1

Claims Claim Secured by a 2

Security Interest in the Debtor’s 3

Principal Residence in a Chapter 4

13 Case

(a) In General. This rule applies in a Chapter 13 case to 6

a claim that is secured by a security interest in the 7

debtor’s principal residence and for which the plan 8

provides for the trustee or debtor to make contractual 9

installment payments. Unless the court orders 10

otherwise, the notice requirements of this rule cease 11

when an order terminating or annulling the automatic 12

stay related to that residence becomes effective. 13

New material is underlined in red; matter to be omitted

is lined through.

The changes indicated are to the restyled version of

Rule 3002.1, not yet in effect.

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 2

(b) Notice of a Payment Change; Home-Equity Line 14

of Credit; Effect of an Untimely Notice; 15

Objection. 16

(1) Notice by the Claim Holder—In General. 17

The claim holder must file a notice of any 18

change in the payment amount,—of an 19

installment payment including any change 20

one resulting from an interest-rate or escrow-21

account adjustment. At least 21 days before 22

the new payment is due, the The notice must 23

be filed and served on: 24

• the debtor; 25

• the debtor’s attorney; and 26

• the trustee. 27

Except as provided in (b)(2), it must be 28

filed and served at least 21 days before the 29

new payment is due.If the claim arises from 30

a home-equity line of credit, the court may 31

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3 FEDERAL RULES OF BANKRUPTCY PROCEDURE

modify this requirement. 32

(2) Notice of a Change in a Home-Equity Line 33

of Credit. 34

(A) Deadline for the Initial Filing; Later 35

Annual Filing. If the claim arises 36

from a home-equity line of credit, the 37

notice of a payment change must be 38

filed and served either as provided in 39

(b)(1) or within one year after the 40

bankruptcy-petition filing, and then at 41

least annually. 42

(B) Content of the Annual Notice. The 43

annual notice must: 44

(i) state the payment amount due 45

for the month when the notice 46

is filed; and 47

(ii) include a reconciliation 48

amount to account for any 49

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 4

overpayment or 50

underpayment during the 51

prior year. 52

first payment due at least 21 days 54

after the annual notice is filed and 55

served must be increased or decreased 56

by the reconciliation amount. 57

(D) Effective Date. The new payment 58

amount stated in the annual notice 59

(disregarding the reconciliation 60

amount) is effective on the first 61

payment due date after the payment 62

under (C) has been made and remains 63

effective until a new notice becomes 64

effective. 65

(E) Payment Changes Greater Than $10. 66

If the claim holder chooses to give 67

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5 FEDERAL RULES OF BANKRUPTCY PROCEDURE

annual notices under (b)(2) and the 68

monthly payment increases or 69

decreases by more than $10 in any 70

month, the holder must file and serve 71

(in addition to the annual notice) a 72

notice under (b)(1) for that month. 73

(3) Effect of an Untimely Notice. If the claim 74

holder does not timely file and serve the 75

notice required by (b)(1) or (b)(2), the 76

effective date of the new payment amount is 77

as follows: 78

(A) when the notice concerns a payment 79

increase, on the first payment due 80

date that is at least 21 days after the 81

untimely notice was filed and served; 82

or 83

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 6

(B) when the notice concerns a payment 84

decrease, on the first payment due 85

date after the date of the notice. 86

(4) Party in Interest’s Objection. A party in 87

interest who objects to the a payment 88

change noticed under (b)(1) or (b)(2) may 89

file and serve a motion to determine 90

whether the change is required to maintain 91

payments under § 1322(b)(5)the change’s 92

validity. Unless the court orders otherwise, 93

if no motion is filed by before the day 94

before the new payment is due, the change 95

goes into effect on that date. 96

Case Was Filed; Notice by the Claim Holder. 98

The claim holder must file a notice itemizing all 99

fees, expenses, and charges incurred after the case 100

was filed that the holder asserts are recoverable 101

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7 FEDERAL RULES OF BANKRUPTCY PROCEDURE

against the debtor or the debtor’s principal 102

residence. Within 180 days after the fees, 103

expenses, or charges were are incurred, the notice 104

must be filed and served on the individuals listed 105

in (b)(1).: 106

• the debtor; 107

• the debtor’s attorney; and 108

• the trustee. 109

(d) Filing Notice as a Supplement to a Proof of Claim. 110

A notice under (b) or (c) must be filed as a 111

supplement to the a proof of claim using Form 410S-112

1 or 410S-2, respectively. The notice is not subject 113

to Rule 3001(f). 114

(e) Determining Fees, Expenses, or Charges. On a 115

party in interest’s motion filed within one year after 116

the notice in (c) was served, the court must, after 117

notice and a hearing, determine whether paying any 118

claimed fee, expense, or charge is required by the 119

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 8

underlying agreement and applicable nonbankruptcy 120

law. to cure a default or maintain payments under 121

§ 1322(b)(5).The motion must be filed within one 122

year after the notice under (c) was served, unless a 123

party in interest requests and the court orders a 124

shorter period. 125

(f) Motion to Determine Status; Response; Court 126

Determination. 127

(1) Timing; Content and Service. At any time 128

after the date of the order for relief under 129

Chapter 13 and until the trustee files the 130

notice under (g)(1), the trustee or debtor may 131

file a motion to determine the status of any 132

claim described in (a). The motion must be 133

prepared using Form 410C13-M1 and be 134

served on: 135

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9 FEDERAL RULES OF BANKRUPTCY PROCEDURE

• the debtor and the debtor’s 136

attorney, if the trustee is the 137

movant; 138

• the trustee, if the debtor is the 139

movant; and 140

• the claim holder. 141

(2) Response; Content and Service. If the claim 142

holder disagrees with facts set forth in the 143

motion, it must file a response within 21 days 144

after the motion is served. The response must 145

be prepared using Form 410C13-M1R and be 146

served on the individuals listed in (b)(1). 147

(3) Court Determination. If the claim holder’s 148

response asserts a disagreement with facts set 149

forth in the motion, the court must, after 150

notice and a hearing, determine the status of 151

the claim and enter an appropriate order. If 152

the claim holder does not respond to the 153

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 10

motion or files a response agreeing with the 154

facts set forth in it, the court may grant the 155

motion based on those facts. 156

(fg) Notice of the Final Cure Payment. Trustee’s End-157

of-Case Notice of Payments Made; Response; Court 158

Determination. 159

(1)

Contents of a Notice

Timing and Content

160

Within 30 45 days after the debtor completes 161

all payments due to the trustee under a 162

Chapter 13 plan, the trustee must file a notice: 163

(A) stating that the debtor has paid in full 164

the what amount required, if any, the 165

trustee paid to the claim holder to cure 166

any default on the claimand whether 167

it has been cured; and 168

(B) the stating what amount, if any, the 169

trustee paid to the claim holder for 170

contractual payments that came due 171

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11 FEDERAL RULES OF BANKRUPTCY PROCEDURE

during the pendency of the case and 172

whether contractual payments are 173

current as of the date of the notice; 174

andthe claim holder of its obligation to 175

file and serve a response under (g). 176

obligation to file and serve a response 178

respond under (g)(3). 179

(2) Serving the Notice Service. The notice must 180

be prepared using Form 410C13-N and be 181

served on: 182

• the claim holder; 183

• the debtor; and 184

• the debtor’s attorney. 185

(3) Response. The claim holder must file a 186

response to the notice within 28 days after its 187

service. The response, which is not subject 188

to Rule 3001(f), must be filed as a 189

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 12

supplement to the claim holder’s proof of 190

claim. The response must be prepared using 191

Form 410C13-NR and be served on the 192

individuals listed in (b)(1). 193

(3) The Debtor’s Right to File. The debtor may 194

file and serve the notice if: 195

(A) the trustee fails to do so; and the 196

debtor contends that the final cure 197

payment has been made and all plan 198

payments have been completed. 199

(4) Court Determination of a Final Cure and 200

Payment. 201

(A) Motion. After service of the response 202

under (g)(3) or within 45 days after 203

service of the trustee’s notice under 204

(g)(1) if no response is filed by the 205

claim holder, the debtor or trustee 206

may file a motion to determine 207

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13 FEDERAL RULES OF BANKRUPTCY PROCEDURE

whether the debtor has cured all 208

defaults and paid all required 209

postpetition amounts on a claim 210

described in (a). The motion must be 211

prepared using Form 410C13-M2 and 212

be served on the entities listed in 213

(f)(1). 214

(B) Response. If the claim holder 215

disagrees with the facts set forth in the 216

motion, it must file a response within 217

21 days after the motion is served. 218

The response must be prepared using 219

Form 410C13-M2R and be served on 220

the individuals listed in (b)(1). 221

and a hearing, the court must 223

determine whether the debtor has 224

cured all defaults and paid all 225

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 14

required postpetition amounts. If the 226

claim holder does not respond to the 227

motion or files a response agreeing 228

with the facts set forth in it, the court 229

may enter an appropriate order based 230

on those facts. 231

(g) Response to a Notice of the Final Cure Payment. 232

(1)

Required Statement.

Within 21 days after the 233

notice under (f) is served, the claim holder 234

must file and serve a statement that: 235

(A) indicates whether: 236

(i) the claim holder agrees that 237

the debtor has paid in full the 238

amount required to cure any 239

default on the claim; and 240

(ii) the debtor is otherwise 241

current on all payments under 242

§ 1322(b)(5); and 243

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15 FEDERAL RULES OF BANKRUPTCY PROCEDURE

(B) itemizes the required cure or 244

postpetition amounts, if any, that the 245

claim holder contends remain unpaid 246

as of the statement’s date. 247

(2)

Persons to be Served.

The holder

must serve 248

the statement on: 249

• the debtor; 250

• the debtor’s attorney; and 251

• the trustee. 252

(3)

Statement to be a Supplement

The

statement 253

must be filed as a supplement to the proof of 254

claim and is not subject to Rule 3001(f). 255

(h)

Determining the Final Cure Payment. On the 256

debtor’s or trustee’s motion filed within 21 days after 257

the statement under (g) is served, the court must, after 258

notice and a hearing, determine whether the debtor 259

has cured the default and made all required 260

postpetition payments. 261

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 16

(ih) Claim Holder’s Failure to Give Notice or 262

Respond. If the claim holder fails to provide any 263

information as required by (b), (c), or (g)this rule, the 264

court may, after notice and a hearing, take one or both 265

of these actionsdo one or more of the following: 266

(1) preclude the holder from presenting the 267

omitted information in any form as evidence 268

in a contested matter or adversary proceeding 269

in the case—unless the court determines that 270

the failure was substantially justified or is 271

harmless; and 272

(2) award other appropriate relief, including 273

reasonable expenses and attorney’s fees 274

caused by the failure; and 275

(3) take any other action authorized by this rule. 276

Committee Note 277

The rule is amended to encourage a greater degree of 278

compliance with its provisions and to allow assessments of 279

a mortgage claim’s status while a chapter 13 case is pending 280

in order to give the debtor an opportunity to cure any 281

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17 FEDERAL RULES OF BANKRUPTCY PROCEDURE

postpetition defaults that may have occurred. Stylistic 282

changes are made throughout the rule, and its title and 283

subdivision headings have been changed to reflect the 284

amended content. 285

Subdivision (a), which describes the rule’s 286

applicability, is amended to delete the word “installment” in 287

the phrase “contractual installment payment” in order to 288

clarify the rule’s applicability to reverse mortgages, which 289

are not paid in installments. 290

In addition to stylistic changes, subdivision (b) is 291

amended to provide more detailed provisions about notice of 292

payment changes for home-equity lines of credit 293

(“HELOCs”) and to add provisions about the effective date 294

of late payment change notices. The treatment of HELOCs 295

presents a special issue under this rule because the amount 296

owed changes frequently, often in small amounts. Requiring 297

a notice for each change can be overly burdensome. Under 298

new subdivision (b)(2), a HELOC claimant may choose to 299

file only annual payment change notices―including a 300

reconciliation figure (net overpayment or underpayment for 301

the past year)―unless the payment change in a single month 302

is for more than $10. This provision also ensures at least 21 303

days’ notice before a payment change takes effect. 304

As a sanction for noncompliance, subdivision (b)(3) 305

now provides that late notices of a payment increase do not 306

go into effect until the first payment due date after the 307

required notice period (at least 21 days) expires. The claim 308

holder will not be permitted to collect the increase for the 309

interim period. There is no delay, however, in the effective 310

date of an untimely notice of a payment decrease. 311

The changes made to subdivisions (c) and (d) are 312

largely stylistic. Stylistic changes are also made to 313

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FEDERAL RULES OF BANKRUPTCY PROCEDURE 18

subdivision (e). In addition, the court is given authority, 314

upon motion of a party in interest, to shorten the time for 315

seeking a determination of the fees, expenses, or charges 316

owed. Such a shortening, for example, might be appropriate 317

in the later stages of a chapter 13 case. 318

Subdivision (f) is new. It provides a procedure for 319

assessing the status of the mortgage at any point before the 320

trustee files the notice under (g)(1). This optional procedure, 321

which should be used only when necessary and appropriate 322

for carrying out the plan, allows the debtor and the trustee to 323

be informed of any deficiencies in payment and to reconcile 324

records with the claim holder in time to become current 325

before the case is closed. The procedure is initiated by 326

motion of the trustee or debtor. An Official Form has been 327

adopted for this purpose. The claim holder then must 328

respond if it disagrees with facts stated in the motion, again 329

using an Official Form to provide the required information. 330

If the claim holder’s response asserts such a disagreement, 331

the court, after notice and a hearing, will determine the status 332

of the mortgage claim. If the claim holder fails to respond or 333

does not dispute the facts set forth in the motion, the court 334

may enter an order favorable to the moving party based on 335

those facts. 336

Under subdivision (g), within 45 days after the last 337

plan payment is made to the trustee, the trustee must file a 338

notice of final cure and payment. An Official Form has been 339

adopted for this purpose. The notice will state the amount 340

that the trustee has paid to cure any default on the claim and 341

whether the default has been cured. It will also state the 342

amount, if any, that the trustee has paid on contractual 343

obligations that came due during the case and whether those 344

payments are current as of the date of the notice. The claim 345

holder then must respond within 28 days after service of the 346

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19 FEDERAL RULES OF BANKRUPTCY PROCEDURE

notice, again using an Official Form to provide the required 347

information. 348

Either the trustee or the debtor may file a motion for 349

a determination of final cure and payment. The motion, 350

using the appropriate Official Form, may be filed after the 351

claim holder responds to the trustee’s notice under (g)(1), or, 352

if the claim holder fails to respond to the notice, within 45 353

days after the notice was served. If the claim holder 354

disagrees with any facts in the motion, it must respond 355

within 21 days after the motion is served, using the 356

appropriate Official Form. The court will then determine the 357

status of the mortgage. A Director’s Form provides guidance 358

on the type of information that should be included in the 359

order. 360

Subdivision (h) was previously subdivision (i). It has 361

been amended to clarify that the listed sanctions are 362

authorized in addition to any other actions that the rule 363

authorizes the court to take if the claim holder fails to 364

provide notice or respond as required by the rule. Stylistic 365

changes have also been made to the subdivision. 366

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PROPOSED AMENDMENTS TO THE FEDERAL

RULES OF BANKRUPTCY PROCEDURE

Rule 8006. Certifying a Direct Appeal to the 1

Court of Appeals

* * * * * 3

(g) Request After Certification for Leave to Take a 4

Direct Appeal to a Court of Appeals After 5

Certification to Authorize a Direct Appeal. Within 6

30 days after the certification has become effective 7

under (a), a request for leave to take a direct appeal 8

to a court of appeals must be filed any party to the 9

appeal may ask the court of appeals to authorize a 10

direct appeal by filing a petition with the circuit clerk 11

in accordance with Fed. R. App. P. 6(c). 12

New material is underlined in red; matter to be omitted

is lined through.

The changes indicated are to the restyled version of

Rule 8006, not yet in effect.

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Page 80 of 157

FEDERAL RULES OF BANKRUPTCY PROCEDURE 2

Committee Note 13

Rule 8006(g) is revised to clarify that any party to the 14

appeal may file a request that a court of appeals authorize a 15

direct appeal. There is no obligation to do so if no party 16

wishes the court of appeals to authorize a direct appeal. 17

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Page 81 of 157

Official Form 410 Proof of Claim page 1

Official Form 410

Proof of Claim 12/24

Read the instructions before filling out this form. This form is for making a claim for payment in a bankruptcy case. Do not use this form to

make a request for payment of an administrative expense. Make such a request according to 11 U.S.C. § 503.

Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies of any

documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments,

mortgages, and security agreements. Do not send original documents; they may be destroyed after scanning. If the documents are not available,

explain in an attachment.

A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.

Fill in all the information about the claim as of the date the case was filed. That date is on the notice of bankruptcy (Form 309) that you received.

Part 1: Identify the Claim

1. Who is the current

creditor?

___________________________________________________________________________________________________________

Name of the current creditor (the person or entity to be paid for this claim)

Other names the creditor used with the debtor ________________________________________________________________________

2. Has this claim been

acquired from

someone else?

 No

 Yes. From whom? ______________________________________________________________________________________________________

3. Where should notices

nd payments to the

creditor be sent?

Federal Rule of

Bankruptcy Procedur

(

FRBP) 2002(g)

Where should notices to the creditor be sent? Where should payments to the creditor be sent? (if

different)

_____________________________________________________

Name

______________________________________________________

Number Street

______________________________________________________

City State ZIP Code

Contact phone

________________________

Contact email ________________________

_____________________________________________________

Name

______________________________________________________

Number Street

______________________________________________________

City State ZIP Code

Contact phone

________________________

Contact email ________________________

Uniform claim identifier for electronic payments in chapter 13 (if you use one):

__ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __

4. Does this claim amend

one already filed?

 No

 Yes. Claim number on court claims registry (if known) ________ Filed on ________________________

MM / DD / YYYY

5. Do you know if anyone

else has filed a proof

of claim for this claim?

 No

 Yes. Who made the earlier filing? _____________________________

Debtor 1 __________________________________________________________________

Debtor 2 ________________________________________________________________

(Spouse, if filing)

United States Bankruptcy C

ourt for the: ______________________ District of __________

(State)

Case number ___________________________________________

Fill in this information to identify the case:

Page 82 of 157

Preliminary Draft of Proposed Amendments | August 2023

Official Form 410 Proof of Claim page 2

Part 2: Give Information About the Claim as of the Date the Case Was Filed

Do you have any number

you use to identify the

debtor?

 No

 Yes. Last 4 digits of the debtor’s account or any number you use to identify the debtor: ____ ____ ____ ____

7. How much is the claim? $_____________________________. Does this amount include interest or other charges?

 No

 Yes. Attach statement itemizing interest, fees, expenses, or other

charges

required by Bankruptcy Rule 3001(c)(2)(A).

8. What is the basis of the

claim?

Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.

Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).

Limit disclosing information that is entitled to privacy, such as health care information.

______________________________________________________________________________

9. Is all or part of the claim

secured?

 No

 Yes. The claim is secured by a lien on property.

Nature of property:

 Real estate. If the claim is secured by the debtor’s principal residence, file a Mortgage Proof of Claim

Attachment (Official Form 410-A) with this Proof of Claim.

 Motor vehicle

 Other. Describe: _____________________________________________________________

Basis for perfection: _____________________________________________________________

Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for

example, a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has

been filed or recorded.)

Value of property: $__________________

Amount of the claim that is secured: $__________________

Amount of the claim that is unsecured: $__________________ (The sum of the secured and unsecured

amounts should match the amount in line 7.)

Amount necessary to cure any default as of the date of the petition: $____________________

Annual Interest Rate (when case was filed) _______%

 Fixed

 Variable

10. Is this claim based on a

ease?

 No

 Yes. Amount necessary to cure any default as of the date of the petition. $____________________

11. Is this claim subject to a

right of setoff?

 No

 Yes. Identify the property: ___________________________________________________________________

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Page 83 of 157

Official Form 410 Proof of Claim page 3

12. Is all or part of the claim

entitled to priority under

11 U.S.C. § 507(a)?

A claim may be partly

priority and partly

nonpriority. For example,

in some categories, the

law limits the amount

entitled to priority.

 No

 Yes. Check one:

Amount entitled to priority



Domestic support obligations (including alimony and child support) under

11 U.S.C. § 507(a)(1)(A) or (a)(1)(B).

$____________________



Up to $3,350* of deposits toward purchase, lease, or rental of property or services for

personal, family, or household use. 11 U.S.C. § 507(a)(7).

$____________________



Wages, salaries, or commissions (up to $15,150*) earned within 180 days before the

bankruptcy petition is filed or the debtor’s business ends, whichever is earlier.

11 U.S.C. § 507(a)(4).

$____________________

 Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8).

$____________________

 Contributions to an employee benefit plan. 11 U.S.C. § 507(a)(5).

$____________________

 Other. Specify subsection of 11 U.S.C. § 507(a)(__) that applies.

$____________________

* Amounts are subject to adjustment on 4/01/25 and every 3 years after that for cases begun on or after the date of adjustment.

Part 3: Sign Below

The person completing

this proof of claim must

sign and date it.

FRBP 9011(b).

If you file this claim

electronically, FRBP

5005(a)(2) authorizes courts

to establish local rules

specifying what a signature

is.

A person who files a

fraudulent claim could be

fined up to $500,000,

imprisoned for up to 5

years, or both.

18 U.S.C. §§ 152, 157, and

3571.

Check the appropriate box:

 I am the creditor.

 I am the creditor’s attorney or authorized agent.

 I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004.

 I am a guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.

I understand that an authorized signature on this Proof of Claim serves as an acknowledgment that when calculating the

amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.

I have examined the information in this Proof of Claim and have a reasonable belief that the information is true

and correct.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on

date _________________

MM / DD / YYYY

________________________________________________________________________

Signature

Print the name of the person who is completing and signing this claim:

Name _______________________________________________________________________________________________

First name Middle name Last name

Title

_______________________________________________________________________________________________

Company

_______________________________________________________________________________________________

Identify the corporate servicer as the company if the authorized agent is a servicer.

Address

_______________________________________________________________________________________________

Number Street

_______________________________________________________________________________________________

City State ZIP Code

Contact phone

_____________________________ Email ____________________________________

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Page 84 of 157

Official Form 410 (Committee Note) (12/24)

Committee Note

The last line of Part 1, Box 3, is amended to permit

use of the uniform claim identifier for all payments in cases

filed under all chapters of the Code, not merely electronic

payments in chapter 13 cases.

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Page 85 of 157

Official Form 410

Instructions for Proof of Claim

United States Bankruptcy Court 12/24

These instructions and definitions generally explain the law. In certain circumstances, such as bankruptcy cases that debtors

do not file voluntarily, exceptions to these general rules may apply. You should consider obtaining the advice of an attorney,

especially if you are unfamiliar with the bankruptcy process and privacy regulations.

How to fill out this form

 Fill in all of the information about the claim as of the

date the case was filed.

 Fill in the caption at the top of the form.

 If the claim has been acquired from someone else,

then state the identity of the last party

who owned the

claim or was the holder of the claim and who transferred

it to you before the initial claim was filed.

 Attach any supporting documents to this form.

Attach redacted copies of any documents that show that the

debt exists, a lien secures the debt, or both. (See the

definition of redaction on the next page.)

Also attach redacted copies of any documents that show

perfection of any security interest or any assignments or

transfers of the debt. In addition to the documents, a

summary may be added. Federal Rule of Bankruptcy

Procedure (called “Bankruptcy Rule”) 3001(c) and (d).

 Do not attach original documents because

attachments may be destroyed after scanning.

 If the claim is based on delivering health care goods

or services, do not disclose confidential health care

information. Leave out or redact confidential

information both in the claim and in the attached

documents.

 A Proof of Claim form and any attached documents

must show only the last 4 digits of any social security

number, individual’s tax identification number, or

financial account number, and only the year of any

person’s date of birth.

See Bankruptcy Rule 9037.

 For a minor child, fill in only the child’s initials and the

full name and address of the child’s parent or

guardian.

For example, write A.B., a minor child (John

Doe, parent, 123 Main St., City, State). See Bankruptcy

Rule 9037.

Confirmation that the claim has been filed

To receive confirmation that the claim has been filed, either

enclose a stamped self-addressed envelope and a copy of this

form or go to the court’s PACER system

(www.pacer.psc.uscourts.gov) to view the filed form.

Understand the terms used in this form

Administrative expense: Generally, an expense that arises

after a bankruptcy case is filed in connection with operating,

liquidating, or distributing the bankruptcy estate.

11 U.S.C. § 503.

Claim: A creditor’s right to receive payment for a debt that the

debtor owed on the date the debtor filed for bankruptcy. 11

U.S.C. §101 (5). A claim may be secured or unsecured.

A person who files a fraudulent claim could be fined up

to $500,000, imprisoned for up to 5 years, or both.

18 U.S.C. §§ 152, 157 and 3571.

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Page 86 of 157

Creditor: A person, corporation, or other entity to whom a

debtor owes a debt that was incurred on or before the date the

debtor filed for bankruptcy. 11 U.S.C. §101 (10).

Debtor: A person, corporation, or other entity who is in

bankruptcy. Use the debtor’s name and case number as shown

in the bankruptcy notice you received. 11 U.S.C. § 101 (13).

Evidence of perfection: Evidence of perfection of a security

interest may include documents showing that a security

interest has been filed or recorded, such as a mortgage, lien,

certificate of title, or financing statement.

Information that is entitled to privacy: A Proof of Claim

form and any attached documents must show only the last 4

digits of any social security number, an individual’s tax

identification number, or a financial account number, only the

initials of a minor’s name, and only the year of any person’s

date of birth. If a claim is based on delivering health care

goods or services, limit the disclosure of the goods or services

to avoid embarrassment or disclosure of confidential health

care information. You may later be required to give more

information if the trustee or someone else in interest objects to

the claim.

Priority claim: A claim within a category of unsecured

claims that is entitled to priority under 11 U.S.C. §507(a).

These claims are paid from the available money or

property in a bankruptcy case before other unsecured

claims are paid. Common priority unsecured claims

include alimony, child support, taxes, and certain unpaid

wages.

Proof of claim: A form that shows the amount of debt the

debtor owed to a creditor on the date of the bankruptcy filing.

The form must be filed in the district where the case is

pending.

Redaction of information: Masking, editing out, or deleting

certain information to protect privacy. Filers must redact or

leave out information entitled to

privacy on the Proof of

Claim form and any attached documents.

Secured claim under 11 U.S.C. §506(a): A claim backed by

a lien on particular property of the debtor. A claim is secured

to the extent that a creditor has the right to be paid from the

property before other creditors are paid. The amount of a

secured claim usually cannot be more than the value of the

particular property on which the creditor has a lien. Any

amount owed to a creditor that is more than the value of the

property normally may be an unsecured claim. But exceptions

exist; for example, see 11 U.S.C. § 1322(b) and the final

sentence of 1325(a).

Examples of liens on property include a mortgage on real

estate or a security interest in a car. A lien may be voluntarily

granted by a debtor or may be obtained through a court

proceeding. In some states, a court judgment may be a lien.

Setoff: Occurs when a creditor pays itself with money

belonging to the debtor that it is holding, or by canceling a

debt it owes to the debtor.

Uniform claim identifier: An optional 24-character identifier

that some creditors use to facilitate electronic payment.

Unsecured claim: A claim that does not meet the

requirements of a secured claim. A claim may be unsecured in

part to the extent that the amount of the claim is more than the

value of the property on which a creditor has a lien.

Offers to purchase a claim

Certain entities purchase claims for an amount that is less than

the face value of the claims. These entities may contact

creditors offering to purchase their claims. Some written

communications from these entities may easily be confused

with official court documentation or communications from the

debtor. These entities do not represent the bankruptcy court,

the bankruptcy trustee, or the debtor. A creditor has no

obligation to sell its claim. However, if a creditor decides to

sell its claim, any transfer of that claim is subject to

Bankruptcy Rule 3001(e), any provisions of the Bankruptcy

Code (11 U.S.C. § 101 et seq.) that apply, and any orders of

the bankruptcy court that apply.

Do not file these instructions with your form.

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Page 87 of 157

Official Form 410C13-M1 (12/25)

United States Bankruptcy Court

_______________ District of _______________

In re _____________________________, Debtor Case No. ________

Chapter 13

Motion Under Rule 3002.1(f)(1) to Determine the Status of the Mortgage Claim

The [trustee/debtor] states as follows:

1. The following information relates to the mortgage claim at issue:

Name of Claim Holder:________________ Court claim no. (if known):____________

Last 4 digits of any number used to identify the debtor’s account: ___ ____ ____ ____

Property address: _____________________________________________________

_____________________________________________________

City State ZIP Code

2. As of the date of this motion, [I have/the trustee has] disbursed payments to cure

arrearages as follows:

a. Allowed amount of the prepetition arrearage, if any: $ ___________________

b. Total amount of the prepetition arrearage paid, if known: $ ___________________

c. Allowed amount of postpetition arrearage, if any: $ ___________________

d. Total amount of postpetition arrearage paid, if known: $ ___________________

e. Total amount of arrearages paid: $ ___________________

3. As of the date of this motion, [I have/the trustee has] disbursed payments for

postpetition fees, expenses, and charges as follows:

a. Amount of postpetition fees, expenses, and charges

noticed and allowed under Rule 3002.1(c): $ ___________________

b. Amount of postpetition fees, expenses, and charges

paid: $ ___________________

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Page 88 of 157

Official Form 410C13-M1 Motion to Determine the Status of the Mortgage Claim page 2

4. As of the date of this motion, [I have/the trustee has] made the following payments

on the postpetition contractual obligations: $ __________________

5. I ask the court for an order under Rule 3002.1(f)(3) determining the status of

the mortgage claim addressed by this motion and whether the payments required

by the plan to be made as of the date of this motion have been made.

Signed: _______________________________

(Trustee/Debtor)

Date: ____/____/________

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Page 89 of 157

Official Form 410C13-M1R (12/25)

United States Bankruptcy Court

_______________ District of _______________

In re _____________________________, Debtor Case No. ________

Chapter 13

Response to [Trustee’s/Debtor’s] Motion Under Rule 3002.1(f)(1) to Determine the

Status of the Mortgage Claim

____________________________ (claim holder) states as follows:

1. The following information relates to the mortgage claim at issue:

Name of Claim Holder:________________ Court claim no. (if known):____________

Last 4 digits of any number used to identify the debtor’s account: ___ ____ ____ ____

Property address: _____________________________________________________

_____________________________________________________

City State ZIP Code

2. Arrearages

Check one:

 As of the date of this response, the debtor has paid in full the amount required to

cure any arrearage on this mortgage claim.

 As of the date of this response, the debtor has not paid in full the amount

required to cure any arrearage on this mortgage claim. The total arrearage

amount remaining unpaid as of the date of this response is:

$ ___________________.

3. Postpetition Contractual Payments

Check all that apply:

 The debtor is current on all postpetition contractual payments, including all fees,

charges, expenses, escrow, and costs. The claim holder attaches a payoff

statement and provides the following information as of the date of this response:

Date last payment was received on the mortgage: ____/_____/______

Date next postpetition payment from the debtor is due: ____/_____/______

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Page 90 of 157

Official Form 410C13-M1R Response to Motion to Determine the Status of the Mortgage Claim page 2

Amount of the next postpetition payment that is due: $____________

Unpaid principal balance of the loan: $____________

Additional amounts due for any deferred or accrued interest: $____________

Balance of the escrow account: $____________

Balance of unapplied funds or funds held in a suspense

account: $____________

 The debtor is not current on all postpetition payments. The debtor is obligated for

the postpetition payment(s) that first became due on: ____/_____/______

 The debtor has fees, charges, expenses, negative escrow amounts, or costs due

and owing. The total amount remaining unpaid as of the date of this response is

$_____________________.

4. Itemized Payment History

Include if applicable:

Because the claim holder asserts that the arrearages have not been paid in full or states

that the debtor is not current on all postpetition payments or that fees, charges,

expenses, escrow, and costs are due and owing, the claim holder attaches an itemized

payment history—using the format of Official Form 410A, Part 5—disclosing the

following amounts from the date of the bankruptcy filing through the date of this

response:

• all prepetition and postpetition payments received;

• the application of all payments received;

• all fees, costs, escrow, and expenses assessed to the mortgage; and

• all amounts the creditor contends remain unpaid.

_______________________________________________ Date ____/_____/______

Signature

Print ________________________________________ Title ____________________

Name

Company ___________________________________________________________

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Official Form 410C13-M1R Response to Motion to Determine the Status of the Mortgage Claim page 3

If different from the notice address listed on the proof of claim to which this response

applies:

Address ____________________________________________________

Number Street

___________________________________________________

City State ZIP Code

Contact phone (______) _____– _________ Email ________________________

The person completing this response must sign it. Check the appropriate box:

 I am the claim holder.

 I am the claim holder’s authorized agent.

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Page 92 of 157

Official Form 410C13-N Trustee’s Notice of Payments Made page 1

Official Form 410C13-N

Trustee’s Notice of Payments Made 12/25

The trustee must file this notice in a chapter 13 case within 45 days after the debtor completes all payments due to the trustee. Rule

3002.1(g)(1).

Part 1:

Mortgage Information

Name of claim holder: ______________________________________

Court claim no. (if known):

______________

Last 4 digits of any number you use to identify the debtor’s account:

____ ____ ____ ____

Property address:

________________________________________________

Number Street

________________________________________________

City State ZIP Code

Part 2:

Statement of Completion

On _______________, debtor completed all payments due the trustee under the chapter 13 plan. A copy of the

trustee’s disbursement ledger for all payments to the claim holder is attached or may be accessed here:

_____________ (web address).

Part 3:

Amount Needed to Cure Default

Amount

a. Allowed amount of prepetition arrearage, if any:

$ __________

b. Total amount prepetition arrearage paid by the trustee as of date of notice:

$ __________

c. Allowed amount of postpetition arrearage, if any:

$ __________

d. Total postpetition arrearage paid by the trustee as of date of notice:

$ __________

e. Total amount of arrearages paid as of date of notice

$ __________

Has the debtor cured all arrearages?

 Yes

 No

Debtor 1 __________________________________________________________________

Debtor 2 _________________________________________________________________

(Spouse, if filing)

United States Bankruptcy Court for the: ______________________ District of ______________

(State)

Case number ___________________________________________

Fill in this information to identify the case:

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Page 93 of 157

Official Form 410C13-N Trustee’s Notice of Payments Made page 2

Part 4: Postpetition Contractual Payment

Check one:



Postpetition contractual payments are made by the debtor.



Postpetition contractual payments are paid through the trustee.

If the trustee has made postpetition contractual payments, complete a-c below; otherwise leave

blank.

a. Total amount of postpetition contractual payments made by the trustee as of date of notice:

$ _________

b. Is the debtor current on postpetition contractual payments as of date of notice?

 Yes

 No

c. Next mortgage payment due:

____/______

MM / YYYY

Part 5:

Postpetition Fees, Expenses, and Charges

Amount of allowed postpetition fees, expenses, and charges:

Amount of postpetition fees, expenses, and charges paid by the trustee as of date of notice:

$ __________

Part 6: A Response Is Required by Bankruptcy Rule 3002.1(g)(3)

Within 28 days after service of this notice, the holder of the claim must file a response using Official Form 410C13-NR.

__________________________________________________ Date ____/_____/________

Signature

Trustee _________________________________________________________

First Name Middle Name Last Name

Address _________________________________________________________

Number Street

___________________________________________________

City State ZIP Code

Contact phone (______) _____– _________ Email ____________________

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Official Form 410C13-NR Response to Trustee’s Notice of Payments Made page 1

Official Form 410C13-NR

Response to Trustee’s Notice of Payments Made 12/25

The claim holder must respond to the Trustee’s Notice of Payments Made within 28 days after it was served. Rule 3002.1(g)(2).

Part 1:

Mortgage Information

Name of claim holder: ______________________________________

Court claim no. (if known):

______________

Last 4 digits of any number you use to identify the debtor’s account:

____ ____ ____ ____

Property address:

________________________________________________

Number Street

________________________________________________

City State ZIP Code

Part 2:

Amount Needed to Cure Default

Check all that are applicable:



The amount required to cure any prepetition arrearage has been paid in full.



The amount required to cure the prepetition arrearage has not been paid in full. Amount of prepetition arrearage remaining unpaid

as of the date of this notice: $ _________________.



The amount required to cure any postpetition arrearage has been paid in full.

 The amount required to cure the postpetition arrearage has not been paid in full. Amount of postpetition arrearage remaining

unpaid as of the date of this notice: $ _________________.

Part 3: Postpetition Contractual Payment



Debtor is current on all postpetition contractual payments, including all fees, charges, expenses,

escrow, and costs. The claim holder attaches a payoff statement and provides the following

information as of the date of this response:

Date last payment was received on the mortgage: ____/_____/______

Debtor 1 __________________________________________________________________

Debtor 2 _________________________________________________________________

(Spouse, if filing)

United States Bankruptcy Court for the: ______________________ District of ______________

(State)

Case number ___________________________________________

Fill in this information to identify the case:

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Page 95 of 157

Official Form 410C13-NR Response to Trustee’s Notice of Payments Made page 2

Date next postpetition payment from the debtor is due: ____/_____/______

Amount of the next postpetition payment that is due: $____________

Unpaid principal balance of the loan: $____________

Additional amounts due for any deferred or accrued interest: $____________

Balance of the escrow account: $____________

Balance of unapplied funds or funds held in a suspense account:

$____________



Debtor is not current on all postpetition contractual payments. The claim holder asserts that the

debtor is obligated for the postpetition payment(s) that first became due on:

____/_____/______.



Debtor has fees, charges, expenses, negative escrow amounts, or costs due and owing. The

claim holder asserts that the total amount remaining unpaid as of the date of this response is

$_____________________.

Part 4 Itemized Payment History

If the claim holder disagrees that the prepetition arrearage has been paid in full, states that the debtor is not current on all postpetition

payments, or states that fees, charges, expenses, escrow, and costs are due and owing, it must attach an itemized payment history—

using the format of Official Form 410A, Part 5—disclosing the following amounts from the date of the bankruptcy filing through the date

of this response:

• all prepetition and postpetition payments received;

• the application of all payments received;

• all fees, costs, escrow, and expenses assessed to the mortgage; and

• all amounts the claim holder contends remain unpaid.

Part 5: Sign Here

The person completing this response must sign it. Check the appropriate box:



I am the claim holder.



I am the claim holder’s authorized agent.

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Official Form 410C13-NR Response to Trustee’s Notice of Payments Made page 3

I declare under penalty of perjury that the information provided in this response is true and correct to the best of my

knowledge, information, and reasonable belief.

__________________________________________________ Date ____/_____/________

Signature

_________________________________________________________

First Name Middle Name Last Name

_________________________________________________________

Number Street

___________________________________________________

City State ZIP Code

Contact phone (______) _____– _________ Email ________________________

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Page 97 of 157

Official Form 410C13-M2 (12/25)

United States Bankruptcy Court

_______________ District of _______________

In re _____________________________, Debtor Case No. ________

Chapter 13

Motion Under Rule 3002.1(g)(4) to Determine Final Cure and Payment of Mortgage

Claim

The [trustee/debtor] states as follows:

1. The following information relates to the mortgage claim at issue:

Name of Claim Holder:________________ Court claim no. (if known):____________

Last 4 digits of any number used to identify the debtor’s account: ___ ____ ____ ____

Property address: _____________________________________________________

_____________________________________________________

City State ZIP Code

2. As of the date of this motion, [I have/the trustee has] disbursed payments to cure

arrearages as follows:

a. Allowed amount of the prepetition arrearage, if any: $ ___________________

b. Total amount of the prepetition arrearage paid, if known: $ ___________________

c. Allowed amount of postpetition arrearage, if any: $ ___________________

d. Total amount of postpetition arrearage paid, if known: $ ___________________

e. Total amount of arrearages paid: $ ___________________

3. As of the date of this motion, [I have/the trustee has] disbursed payments for

postpetition fees, expenses, and charges as follows:

a. Amount of postpetition fees, expenses, and charges

noticed and allowed under Rule 3002.1(c): $ ___________________

b. Amount of postpetition fees, expenses, and charges

paid: $ ___________________

Preliminary Draft of Proposed Amendments | August 2023

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Official Form 410C13-M2 Motion to Determine Final Cure and Payment page 2

4. As of the date of this motion, [I have/the trustee has] made the following payments

on the postpetition contractual obligations: $ __________________

5. I ask the court for an order under Rule 3002.1(g)(4) determining whether the

debtor has cured all arrearages, if any, and paid all postpetition amounts required

by the plan to be made as of the date of this motion.

Signed: _______________________________

(Trustee/Debtor)

Date: ____/____/________

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Page 99 of 157

Official Form 410C13-M2R (12/25)

United States Bankruptcy Court

_______________ District of _______________

In re _____________________________, Debtor Case No. ________

Chapter 13

Response to [Trustee’s/Debtor’s] Motion to Determine Final Cure and Payment of

the Mortgage Claim

____________________________ (claim holder) states as follows:

1. The following information relates to the mortgage claim at issue:

Name of Claim Holder:________________ Court claim no. (if known):____________

Last 4 digits of any number used to identify the debtor’s account: ___ ____ ____ ____

Property address: _____________________________________________________

_____________________________________________________

City State ZIP Code

2. Arrearage Provided for by the Plan

Check one:

 As of the date of this response, Debtor has paid in full the amount required to

cure any arrearage on this mortgage claim.

 As of the date of this response, Debtor has not paid in full the amount required to

cure any arrearage on this mortgage claim. The total arrearage amount

remaining unpaid as of the date of this response is:

$ ___________________.

3. Postpetition Contractual Payments

Check all that apply:

 Debtor is current on all postpetition contractual payments, including all fees,

charges, expenses, escrow, and costs. The claim holder attaches a payoff

statement and provides the following information as of the date of this response:

Date last payment was received on the mortgage: ___/___/____

Date next postpetition payment from the debtor is due: ___/___/____

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Official Form 410C13-M2R Motion to Determine the Status of the Mortgage Claim page 2

Amount of the next postpetition payment that is due: $____________

Unpaid principal balance of the loan: $____________

Additional amounts due for any deferred or accrued interest: $____________

Balance of the escrow account: $____________

Balance of unapplied funds or funds held in a suspense

account: $____________

 Debtor is not current on all postpetition payments. The debtor is obligated for the

postpetition payment(s) that first became due on: ____/_____/______.

 Debtor has fees, charges, expenses, negative escrow amounts, or costs due and

owing. The total amount remaining unpaid as of the date of this response is

$_____________________.

4. Itemized Payment History

Include if applicable:

Because the claim holder disagrees that the arrearages have been paid in full or states

that the debtor is not current on all postpetition payments or that fees, charges,

expenses, escrow, and costs are due and owing, the claim holder attaches an itemized

payment history—using the format of Official Form 410A, Part 5—disclosing the

following amounts from the date of the bankruptcy filing through the date of this

response:

• all prepetition and postpetition payments received;

• the application of all payments received;

• all fees, costs, escrow, and expenses assessed to the mortgage; and

• all amounts the creditor contends remain unpaid.

_______________________________________________ Date ____/_____/______

Signature

Print ________________________________________ Title ____________________

Name

Company ___________________________________________________________

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Official Form 410C13-M2R Motion to Determine the Status of the Mortgage Claim page 3

If different from the notice address listed on the proof of claim to which this response

applies:

Address ____________________________________________________

Number Street

___________________________________________________

City State ZIP Code

Contact phone (______) _____– _________ Email ________________________

The person completing this response must sign it. Check the appropriate box:

 I am the claim holder.

 I am the claim holder’s authorized agent.

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Official Form 410 (Committee Note) (12/25)

Committee Note 1

Official Forms 410C13-M1, 410C13-M1R, 410C13-2

N, 410C13-NR, 410C13-M2, and 410C13-M2R are new. 3

They are adopted to implement new and revised provisions 4

of Rule 3002.1 that prescribe procedures for determining the 5

status of a home mortgage claim in a chapter 13 case. 6

Official Forms 410C13-M1 and 410C13-M1R 7

implement Rule 3002.1(f). Form 410C13-M1 is used if 8

either the trustee or the debtor moves to determine the status 9

of a home mortgage at any time during a chapter 13 case 10

prior to the trustee’s Final Notice of Payments Made. If the 11

trustee files the motion, she must disclose the payments she 12

has made to the holder of the mortgage claim so far in the 13

case. If the debtor, rather than the trustee, has been making 14

the postpetition contractual payments, the trustee should 15

state in part 4 that she has paid $0. If the debtor files the 16

motion, he should provide information about any payments 17

he has made and any payments made by the trustee of which 18

the debtor has knowledge. 19

Within 21 days after service of the trustee’s or 20

debtor’s motion, the holder of the mortgage claim must file 21

a response, using Official Form 410C13-M1R, if it disputes 22

any facts set forth in the motion. See Rule 3002.1(f)(2). The 23

claim holder must indicate whether the debtor has paid the 24

full amount required to cure any arrearage and whether the 25

debtor is current on all postpetition payments. The claim 26

holder must provide a payoff statement, or, if the claim 27

holder says that the debtor is not current on all payments, it 28

must attach an itemized payment history for the postpetition 29

period, using the format of Official Form 410A, Part 5. 30

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Official Form 410 (Committee Note) (12/25)

Official Form 410C13-N is to be used by a trustee to 31

provide the notice required by Rule 3002.1(g)(1) to be filed 32

at the end of the case. This notice must be filed within 45 33

days after the debtor completes all payments due to the 34

trustee, and it requires the trustee to report on the amounts 35

the trustee paid to cure any arrearage, for postpetition 36

mortgage obligations, and for postpetition fees, expenses, 37

and charges. The trustee must also provide her disbursement 38

ledger for all payments she made to the claim holder. 39

Within 28 days after service of the trustee’s notice, 40

the holder of the mortgage claim must file a response using 41

Official Form 410C13-NR. See Rule 3002.1(g)(3). The 42

claim holder must indicate whether the debtor has paid the 43

full amount required to cure any arrearage and whether the 44

debtor is current on all postpetition payments. If the claim 45

holder says that the debtor is not current on all payments, it 46

must attach an itemized payment history for the postpetition 47

period, using the format of Official Form 410A, Part 5. The 48

response, which is not subject to Rule 3001(f), must be filed 49

as a supplement to the claim holder’s proof of claim. 50

Official Forms 410C13-M2 and 410C13-M2R 51

implement Rule 3002.1(g)(4). Form 410C13-M2 is used if 52

either the trustee or the debtor moves at the end of the case 53

to determine whether the debtor has cured all arrearages and 54

paid all required postpetition amounts. If the trustee files the 55

motion, she must disclose the payments she has made to the 56

holder of the mortgage claim. If the debtor, rather than the 57

trustee, has been making the postpetition contractual 58

payments, the trustee should state in part 4 that she has paid 59

$0. If the debtor files the motion, he should provide 60

information about any payments he has made and any 61

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Official Form 410 (Committee Note) (12/25)

payments made by the trustee of which the debtor has 62

knowledge. 63

Within 21 days after service of the trustee’s or 64

debtor’s motion, the holder of the mortgage claim must file 65

a response, using Official Form 410C13-M2R, if it disputes 66

any facts set forth in the motion. See Rule 3002.1(g)(4)(B). 67

The claim holder must indicate whether the debtor has paid 68

the full amount required to cure any arrearage and whether 69

the debtor is current on all postpetition payments. The claim 70

holder must provide a payoff statement, or, if the claim 71

holder says that the debtor is not current on all payments, it 72

must attach an itemized payment history for the postpetition 73

period, using the format of Official Form 410A, Part 5. 74

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

H. THOMAS BYRON III

SECRETARY

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

TO: Hon. John D. Bates, Chair

Committee on Rules of Practice and Procedure

FROM: Hon. Robin L. Rosenberg, Chair

Advisory Committee on Civil Rules

RE: Report of the Advisory Committee on Civil Rules

DATE: May 11, 2023

Introduction

The Civil Rules Advisory Committee met in West Palm Beach, FL, on March 28, 2023.

Members of the public attended in person, and public on-line attendance was also provided. * * *

Part I of this report presents three items for action at this meeting:

* * * * *

(b) Rule 16(b)(3) and 26(f)(3) amendments—privilege logs: These small amendments were

presented to the Standing Committee at its January 2023 meeting. At that time the Standing

Revised to incorporate changes that were made during the June 6, 2023 meeting of the Committee on

Rules of Practice and Procedure.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

Committee had no problems with the rule changes, but questioned the length of the

Committee Note. The Note has been shortened, and the Advisory Committee unanimously

recommends that this preliminary draft of rule amendments be published for public

comment in August 2023.

Subcommittee, the Advisory Committee unanimously recommended that the preliminary

draft of a new Rule 16.1 to deal with MDL proceedings be published for public comment

in August 2023.

I. Action Items

* * * * *

B. For publication: Amendments to Rule 26(f) and Rule 16(b) to call for

development early in the litigation of a method for complying with

Rule 26(b)(5)(A)

These amendment proposals deal with what is called the “privilege log” problem. During

the Standing Committee’s January 2023 meeting, the proposed rule amendments elicited no

concerns, but the length of the Committee Note was questioned by several members of the

Standing Committee. The matter was remanded to the Advisory Committee. The Committee Note

was shortened, and the Advisory Committee unanimously approved recommending that the

amendment and Note be published, as revised, for public comment in August 2023.

* * * * *

Rule 26. Duty to Disclose; General Provisions Governing Discovery

* * * * *

(f) Conference of the Parties; Planning for Discovery.

* * * * *

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

* * * * *

(D) any issues about claims of privilege or of protection as trial-preparation

materials, including the timing and method for complying with

Rule 26(b)(5)(A) and—if the parties agree on a procedure to assert these

claims after production—whether to ask the court to include their agreement

in an order under Federal Rule of Evidence 502;

* * * * *

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

DRAFT COMMITTEE NOTE

Rule 26(f)(3)(D) is amended to address 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. Compliance with Rule 26(b)(5)(A) can involve very large costs, often

including a document-by-document “privilege log.”

Rule 26(b)(5)(A) was adopted in 1993, and from the outset was intended to recognize the

need for flexibility. Nevertheless, the rule has not been consistently applied in a flexible manner,

sometimes imposing undue burdens.

This amendment directs the parties to address the question how they will comply with

Rule 26(b)(5)(A) in their discovery plan, and report to the court about this topic. A companion

amendment to Rule 16(b)(3)(B)(iv) seeks to prompt the court to include provisions about

complying with Rule 26(b)(5)(A) in scheduling or case management orders.

This amendment also seeks to grant the parties maximum flexibility in designing an

appropriate method for identifying the grounds for withholding materials. Depending on the nature

of the litigation, the nature of the materials sought through discovery, and the nature of the

privilege or protection involved, what is needed in one case may not be necessary in another. No

one-size-fits-all approach would actually be suitable in all cases.

In some cases, it may be suitable to have the producing party deliver a document-by-

document listing with explanations of the grounds for withholding the listed materials.

In some cases, some sort of categorical approach might be effective to relieve the producing

party of the need to list many withheld documents. For example, it may be that communications

between a party and outside litigation counsel could be excluded from the listing, and in some

cases a date range might be a suitable method of excluding some materials from the listing

requirement. These or other methods may enable counsel to reduce the burden and increase the

effectiveness of complying with Rule 26(b)(5)(A). But the use of categories calls for careful

drafting and application keyed to the specifics of the action.

Requiring that discussion of this topic begin at the outset of the litigation and that the court

be advised of the parties’ plans or disagreements in this regard is a key purpose of this amendment.

Production of a privilege log near the close of the discovery period can create serious problems.

Often it will be valuable to provide for “rolling” production of materials and an appropriate

description of the nature of the withheld material. In that way, areas of potential dispute may be

identified and, if the parties cannot resolve them, presented to the court for resolution.

Early design of methods to comply with Rule 26(b)(5)(A) may also reduce the frequency

of claims that producing parties have over-designated responsive materials. Such concerns may

arise, in part, due to failure of the parties to communicate meaningfully about the nature of the

privileges and materials involved in the given case. It can be difficult to determine whether certain

materials are subject to privilege protection, and candid early communication about the difficulties

to be encountered in making and evaluating such determinations can avoid later disputes.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

Rule 16. Pretrial Conferences; Scheduling; Management

* * * * *

(b) Scheduling and Management.

* * * * *

(3) Contents of the Order.

* * * * *

(B) Permitted Contents.

* * * * *

(iv) include the timing and method for complying with Rule 26(b)(5)(A)

and any agreements the parties reach for asserting claims of privilege or of

protection as trial-preparation material after information is produced,

including agreements reached under Federal Rule of Evidence 502;

* * * * *

DRAFT COMMITTEE NOTE

Rule 16(b) is amended in tandem with an amendment to Rule 26(f)(3)(D). In addition, two

words—“and management”—are added to the title of this rule in recognition that it contemplates

that the court will in many instances do more than establish a schedule in its Rule 16(b) order; the

focus of this amendment is an illustration of such activity.

The amendment to Rule 26(f)(3)(D) directs the parties to discuss and include in their

discovery plan a method for complying with the requirements in Rule 26(b)(5)(A). It also directs

that the discovery plan address the timing for compliance with this requirement, in order to avoid

problems that can arise if issues about compliance emerge only at the end of the discovery period.

Early attention to the particulars on this subject can avoid problems later in the litigation

by establishing case-specific procedures up front. It may be desirable for the Rule 16(b) order to

provide for “rolling” production that may identify possible disputes about whether certain withheld

materials are indeed protected. If the parties are unable to resolve those disputes between

themselves, it is often desirable to have them resolved at an early stage by the court, in part so that

the parties can apply the court’s resolution of the issues in further discovery in the case.

Because the specific method of complying with Rule 26(b)(5)(A) depends greatly on the

specifics of a given case there is no overarching standard for all cases. In the first instance, the

parties themselves should discuss these specifics during their Rule 26(f) conference; these

amendments to Rule 16(b) recognize that the court can provide direction early in the case. Though

the court ordinarily will give much weight to the parties’ preferences, the court’s order prescribing

the method for complying with Rule 26(b)(5)(A) does not depend on party agreement.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

* * * * *

C. New Rule 16.1 on MDL proceedings—recommendation to publish for public

comment

After a great deal of effort, the MDL Subcommittee of the Advisory Committee has

developed an amendment proposal set forth below—the addition of a new Rule 16.1 on managing

MDL proceedings. The MDL Subcommittee was originally appointed in 2017. It has had three

chairs (two of whom went on to become Chairs of the Advisory Committee). After considering

many proposed rule amendments, it reached a consensus on the appropriate way to address MDL

proceedings in the Civil Rules—adoption of new Rule 16.1, addressed particularly to those

proceedings.

Because the process of development involved consideration of a wide variety of issues and

took a long time, it seems useful to introduce the current proposal with some background on the

evolution of the Subcommittee’s work. The initial submissions to the Committee raised a wide

variety of issues. At the Committee’s April 2018, meeting the MDL Subcommittee made its first

report to the full Committee, listing ten discussion issues:

(1) The scope of any rule;

(2) The handling of master complaints and answers;

(3) Use of plaintiff fact sheets or requiring particularized pleading or requiring immediate

submission of evidence by plaintiffs;

(4) Requiring each plaintiff to pay a full filing fee; with possible effect on Rule 20 joinder;

(5) Sequencing discovery;

(6) Requiring disclosure of third party litigation funding;

(7) Handling of bellwether trials, and requiring consent to holding such trials:

(8) Expanding interlocutory review of certain decisions in certain MDL proceedings;

(9) Coordinating MDL proceedings with parallel proceedings in state courts or other

federal courts; and

(10) Formation of leadership counsel for plaintiffs and common fund arrangements.

A great deal of effort was spent examining the proposal to require disclosure of third party

litigation funding. Eventually, the conclusion was that this topic, while perhaps very important,

was not particularly salient in MDL proceedings. So TPLF remains on the Committee’s agenda,

and disclosure of such arrangements has been endorsed in some bills introduced in Congress, but

it is no longer a feature of the MDL Subcommittee’s work.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

Even more effort was spent examining the possibility of expanded interlocutory review.

As it developed, the proposal was to emulate Rule 23(f) on immediate review of class certification

decisions. Very helpful submissions favoring and opposing such a rule change were submitted,

and Subcommittee members participated in a large number of conferences and meetings with bar

groups about this possibility. Eventually the decision was made that there was not such a need for

expanded review in light of existing methods (including certification under 28 U.S.C. § 1292(b)),

and that idea was put aside.

Attention focused, instead, on adding provisions specifically calibrated to MDL

proceedings to Rule 26(f) and Rule 16(b), which were included in the agenda book for the full

Committee’s March 2022 meeting. By the time that meeting occurred, however, further outreach

by the Subcommittee (including a conference involving transferee judges, plaintiff attorneys and

defense attorneys organized by the Emory University’s Institute for Complex Litigation and Mass

Claims) had pointed up some difficulties with relying on Rule 26(f) as a vehicle for managing

MDL proceedings. In particular:

(1) It might often happen that a Rule 26(f) conference had already occurred in some actions

before a Panel transfer order centralizing them in the transferee court, and perhaps that a

schedule for activity in those actions had already been adopted in the transferor court. There

would ordinarily be no occasion under Rule 26(f) for a second planning conference or

report to the court. And after transfer by the Panel, there might not be any Rule 26(f)

conferences in actions in which they had not already occurred before transfer.

(2) It increasingly seemed valuable to provide the transferee court in MDL proceedings

with the opportunity to appoint “coordinating counsel” to oversee the initial organization

of the proceedings and assist the court in making its initial management order to guide the

future course of the MDL proceedings.

These issues prompted the idea of a new Rule 16.1 to address MDL proceedings. Such a

rule could assist the transferee court in addressing a variety of matters that often proved important

in MDL proceedings. It could also provide a substitute for MDL proceedings for the Rule 26(f)

meeting that is to occur in ordinary litigation. Initial sketches of such a rule, including alternative

versions, were appended to the agenda book for the Standing Committee’s June 2022 meeting.

After that Standing Committee meeting, these Rule 16.1 sketches were the focus of several

further conferences. Both the American Association for Justice and the Lawyers for Civil Justice

arranged for representatives of the Subcommittee to participate in conference with members of

their organizations about the Rule 16.1 ideas. Importantly, three judicial representatives of the

Subcommittee also attended the transferee judges conference, put on by the Judicial Panel. At that

conference there was a special session with the transferee judges to receive feedback about the

Rule 16.1 sketches, including the question which alternative approach seemed most suitable.

At its January 2023 meeting, the Standing Committee received a thorough report about

progress on this front along the lines initially introduced during its June 2022 meeting.

With the extensive resulting information base, the Subcommittee went to work refining the

Rule 16.1 proposal. This work included multiple meetings via Zoom and many more exchanges

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

of email about evolving drafts. Eventually, the Subcommittee reached consensus on a proposal to

recommend for public comment. At its March 2023 meeting, the Advisory Committee

unanimously recommended publication of this proposal for public comment in August 2023. The

proposal has been revised since the Advisory Committee’s March 2023 meeting in accordance

with the suggestions of the style consultants.

One point discussed during the Advisory Committee meeting deserves mention. Proposed

Rule 16.1(a), (c), and (d) all use the verb “should” with regard to the court’s management of MDL

proceedings. During the Advisory Committee meeting, concerns were raised about whether use of

this verb made the proposed rule mere advice and not a genuine rule. One alternative suggested

was “must, if appropriate.”

The MDL Subcommittee caucused during the lunch break in the Advisory Committee

meeting and concluded that the rule ought to use “should” in the points where the draft used that

word. On the one hand, as the Committee Note recognizes, there may be some MDL proceedings

in which no initial management conference is needed, so “must” would be too strong. And “must,

if appropriate” would seem not significantly different from “should.” The view was that “should”

is the correct word to use in 16.1.

As also noted during the Advisory Committee meeting, quite a few other rules already use

“should.” See, e.g., Rule 1 (the rules “should be construed * * * to secure the just, speedy, and

inexpensive determination”); 15(a)(2) (court “should freely give leave [to amend]”); 15(b)(1)

(court “should freely permit an amendment” if there is an objection at trial that evidence is not

within the issues raised in the pleadings): 16(d) (after a pretrial conference “the court should issue

an order reciting the action taken”); 25(a)(2) (if a party dies, the death “should be noted on the

record”); 54(c) (final judgment “should grant the relief to which each party is entitled”); 56(a) (if

the court grants summary judgment it “should state on the record the reasons for granting the

motion”). At the same time, it might also be noted that the use of “must” in some rules may be

questioned. See Rule 55(b)(1) (clerk “must” enter default judgment if a claim “is for a sum certain

or that can be made certain by computation”). Though the public comment period may raise

questions about this choice of word, “should” has been retained for purposes of publication.

Rule 16.1. Managing Multidistrict Litigation

(a) INITIAL MDL MANAGEMENT CONFERENCE. After the Judicial Panel on

Multidistrict Litigation orders the transfer of actions, the transferee court should

schedule an initial management conference to develop a management plan for

orderly pretrial activity in the MDL proceedings.

(b) DESIGNATING COORDINATING COUNSEL FOR THE CONFERENCE. The

transferee court may designate coordinating counsel to:

(1) assist the court with the conference; and

At its June 6, 2023 meeting, the Standing Committee removed the word “Managing” from the title of

proposed new Rule 16.1. Except where otherwise noted, other changes the Standing Committee made were

stylistic in nature or to correct a typographical issue.

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

(2) work with plaintiffs or with defendants to prepare for the conference and prepare

any report ordered under Rule 16.1(c).

order the parties to meet and prepare a report to be submitted to the court before the

conference begins. The report must address any matter designated by the court,

which may include any matter addressed in the list below or in Rule 16. The report

may also address any other matter the parties wish to bring to the court’s attention.

(1) whether leadership counsel should be appointed, and if so:

(A) the procedure for selecting them and whether the appointment should

be reviewed periodically during the MDL proceedings;

(B) the structure of leadership counsel, including their responsibilities and

authority in conducting pretrial activities;

(D) proposed methods for them to regularly communicate with and report

to the court and nonleadership counsel;

(E) any limits on activity by nonleadership counsel; and

(F) whether and, if so, when to establish a means for compensating

leadership counsel;

(2) identifying any previously entered scheduling or other orders and stating

whether they should be vacated or modified;

(3) identifying the principal factual and legal issues likely to be presented in the

MDL proceedings;

(4) how and when the parties will exchange information about the factual bases for

their claims and defenses;

(5) whether consolidated pleadings should be prepared to account for multiple

actions included in the MDL proceedings;

(6) a proposed plan for discovery, including methods to handle it efficiently;

(7) any likely pretrial motions and a plan for addressing them;

(8) a schedule for additional management conferences with the court;

(9) whether the court should consider measures to facilitate settlement of some or

all actions before the court, including measures identified in Rule 16(c)(2)(I);

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Excerpt from the May 11, 2023 Report of the Advisory Committee on Civil Rules

(revised July 11, 2023)

(10) how to manage the filing of new actions in the MDL proceedings;

(11) whether related actions have been filed or are expected to be filed in other

courts, and whether to consider possible methods for coordinating with them; and

(12) whether matters should be referred to a magistrate judge or a master.

(d) INITIAL MDL MANAGEMENT ORDER. After the conference, the court should

enter an initial MDL management order addressing the matters designated under

Rule 16.1(c)—and any other matters in the court’s discretion. This order controls

the MDL proceedings until the court modifies it.

DRAFT COMMITTEE NOTE

The Multidistrict Litigation Act, 28 U.S.C. § 1407, was adopted in 1968. It empowers the

Judicial Panel on Multidistrict Litigation to transfer one or more actions for coordinated or

consolidated pretrial proceedings, to promote the just and efficient conduct of such actions. The

number of civil actions subject to transfer orders from the Panel has increased significantly since

the statute was enacted. In recent years, these actions have accounted for a substantial portion of

the federal civil docket. There previously was no reference to multidistrict litigation in the Civil

Rules and, thus, the addition of Rule 16.1 is designed to provide a framework for the initial

management of MDL proceedings.

Not all MDL proceedings present the type of management challenges this rule addresses.

On the other hand, other multiparty litigation that did not result from a Judicial Panel transfer order

may present similar management challenges. For example, multiple actions in a single district

(sometimes called related cases and assigned by local rule to a single judge) may exhibit

characteristics similar to MDL proceedings. In such situations, courts may find it useful to employ

procedures similar to those Rule 16.1 identifies for MDL proceedings in their handling of those

multiparty proceedings. In both MDL proceedings and other multiparty litigation, the Manual for

Complex Litigation also may be a source of guidance.

Rule 16.1(a). Rule 16.1(a) recognizes that the transferee judge regularly schedules an

initial MDL management conference soon after the Judicial Panel transfer occurs to develop a

management plan for the MDL proceedings. That initial MDL management conference ordinarily

would not be the only management conference held during the MDL proceedings. Although

holding an initial MDL management conference in MDL proceedings is not mandatory under Rule

16.1(a), early attention to the matters identified in Rule 16.1(c) may be of great value to the

transferee judge and the parties.

Rule 16.1(b). Rule 16.1(b) recognizes the court may designate coordinating counsel—

perhaps more often on the plaintiff than the defendant side—to ensure effective and coordinated

discussion and to provide an informative report for the court to use during the initial MDL

management conference.

While there is no requirement that the court designate coordinating counsel, the court

should consider whether such a designation could facilitate the organization and management of

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the action at the initial MDL management conference. The court may designate coordinating

counsel to assist the court before appointing leadership counsel. In some MDL proceedings,

counsel may be able to organize themselves prior to the initial MDL management conference such

that the designation of coordinating counsel may not be necessary.

Rule 16.1(c). The court ordinarily should order the parties to meet to provide a report to

the court about the matters designated in the court’s Rule 16.1(c) order prior to the initial MDL

management conference. This should be a single report, but it may reflect the parties’ divergent

views on these matters. The court may select which matters listed in Rule 16.1(c) or Rule 16 should

be included in the report submitted to the court, and may also include any other matter, whether or

not listed in those rules. Rules 16.1(c) and 16 provide a series of prompts for the court and do not

constitute a mandatory checklist for the transferee judge to follow. Experience has shown,

however, that the matters identified in Rule 16.1(c)(1)-(12) are often important to the management

of MDL proceedings. In addition to the matters the court has directed counsel to address, the parties

may choose to discuss and report about other matters that they believe the transferee judge should

address at the initial MDL management conference.

Rule 16.1(c)(1). Appointment of leadership counsel is not universally needed in MDL

proceedings. But, to manage the MDL proceedings, the court may decide to appoint leadership

counsel. This provision calls attention to a number of topics the court might consider if

appointment of leadership counsel seems warranted.

The first is the procedure for selecting such leadership counsel, addressed in subparagraph

(A). There is no single method that is best for all MDL proceedings. The transferee judge has a

responsibility in the selection process to ensure that the lawyers appointed to leadership positions

are capable and experienced and that they will responsibly and fairly represent all

plaintiffs,

keeping in mind the benefits of different experiences, skill, knowledge, geographical distributions,

and backgrounds. Courts have considered the nature of the actions and parties, the qualifications

of each individual applicant, litigation needs, access to resources, the different skills and

experience each lawyer will bring to the role, and how the lawyers will complement one another

and work collectively.

MDL proceedings do not have the same commonality requirements as class actions, so

substantially different categories of claims or parties may be included in the same MDL proceeding

and leadership may be comprised of attorneys who represent parties asserting a range of claims in

the MDL proceeding. For example, in some MDL proceedings there may be claims by individuals

who suffered injuries, and also claims by third-party payors who paid for medical treatment. The

court may sometimes need to take these differences into account in making leadership

appointments.

Courts have selected leadership counsel through combinations of formal applications,

interviews, and recommendations from other counsel and judges who have experience with MDL

proceedings. If the court has appointed coordinating counsel under Rule 16.1(b), experience with

coordinating counsel’s performance in that role may support consideration of coordinating counsel

for a leadership position, but appointment under Rule 16(b) is primarily focused on coordination

At its June 6, 2023 meeting, the Standing Committee removed the word “all”.

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of the Rule 16.1(c) meeting and preparation of the resulting report to the court for use at the initial

MDL management conference under Rule 16.1(a).

The rule also calls for a report to the court on whether appointment to leadership should be

reviewed periodically. Periodic review can be an important method for the court to manage the

MDL proceeding.

In some MDL proceedings it may be important that leadership counsel be organized into

committees with specific duties and responsibilities. Subparagraph (B) of the rule therefore

prompts counsel to provide the court with specifics on the leadership structure that should be

employed.

Subparagraph (C) recognizes that, in addition to managing pretrial proceedings, another

important role for leadership counsel in some MDL proceedings is to facilitate possible settlement.

Even in large MDL proceedings, the question whether the parties choose to settle a claim is just

that—a decision to be made by those particular parties. Nevertheless, leadership counsel ordinarily

play a key role in communicating with opposing counsel and the court about settlement and

facilitating discussions about resolution. It is often important that the court be regularly apprised

of developments regarding potential settlement of some or all actions in the MDL proceeding. In

its supervision of leadership counsel, the court should make every effort to ensure that leadership

counsel’s participation in any settlement process is appropriate.

One of the important tasks of leadership counsel is to communicate with the court and with

nonleadership counsel as proceedings unfold. Subparagraph (D) directs the parties to report how

leadership counsel will communicate with the court and nonleadership counsel. In some instances,

the court or leadership counsel have created websites that permit nonleadership counsel to monitor

the MDL proceedings, and sometimes online access to court hearings provides a method for

monitoring the proceedings.

Another responsibility of leadership counsel is to organize the MDL proceedings in accord

with the court’s management order under Rule 16.1(d). In some MDLs, there may be tension

between the approach that leadership counsel takes in handling pretrial matters and the preferences

of individual parties and nonleadership counsel. As subparagraph (E) recognizes, it may be

necessary for the court to give priority to leadership counsel’s pretrial plans when they conflict

with initiatives sought by nonleadership counsel. The court should, however, ensure that

nonleadership counsel have suitable opportunities to express their views to the court, and take care

not to interfere with the responsibilities non-leadership counsel owe their clients.

Finally, subparagraph (F) addresses whether and when to establish a means to compensate

leadership counsel for their added responsibilities. Courts have entered orders pursuant to the

common benefit doctrine establishing specific protocols for common benefit work and expenses.

But it may be best to defer entering a specific order until well into the proceedings, when the court

is more familiar with the proceedings.

Rule 16.1(c)(2). When multiple actions are transferred to a single district pursuant to 28

U.S.C. § 1407, those actions may have reached different procedural stages in the district courts

from which cases were transferred (“transferor district courts”). In some, Rule 26(f) conferences

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may have occurred and Rule 16(b) scheduling orders may have been entered. Those scheduling

orders are likely to vary. Managing the centralized MDL proceedings in a consistent manner may

warrant vacating or modifying scheduling orders or other orders entered in the transferor district

courts, as well as any scheduling orders previously entered by the transferee judge.

Rule 16.1(c)(3). Orderly and efficient pretrial activity in MDL proceedings can be

facilitated by early identification of the principal factual and legal issues likely to be presented.

Depending on the issues presented, the court may conclude that certain factual issues should be

pursued through early discovery, and certain legal issues should be addressed through early motion

practice.

Rule 16.1(c)(4). Experience has shown that in MDL proceedings an exchange of

information about the factual bases for claims and defenses can facilitate efficient management.

Some courts have utilized “fact sheets” or a “census” as methods to take a survey of the claims

and defenses presented, largely as a management method for planning and organizing the

proceedings.

The level of detail called for by such methods should be carefully considered to meet the

purpose to be served and avoid undue burdens. Whether early exchanges should occur may depend

on a number of factors, including the types of cases before the court. For example, it is widely

agreed that discovery from individual class members is often inappropriate in class actions, but

with regard to individual claims in MDL proceedings exchange of individual particulars may be

warranted.

And the timing of these exchanges may depend on other factors, such as whether

motions to dismiss or other early matters might render the effort needed to exchange information

unwarranted. Other factors might include whether there are legal issues that should be addressed

(e.g., general causation or preemption) and the number of plaintiffs in the MDL proceeding.

Rule 16.1(c)(5). For case management purposes, some courts have required consolidated

pleadings, such as master complaints and answers in addition to short form complaints. Such

consolidated pleadings may be useful for determining the scope of discovery and may also be

employed in connection with pretrial motions, such as motions under Rule 12 or Rule 56. The

relationship between the consolidated pleadings and individual pleadings filed in or transferred to

the MDL proceeding depends on the purpose of the consolidated pleadings in the MDL

proceedings. Decisions regarding whether to use master pleadings can have significant

implications in MDL proceedings, as the Supreme Court noted in Gelboim v. Bank of America

Corp., 574 U.S. 405, 413 n.3 (2015).

Rule 16.1(c)(6). A major task for the MDL transferee judge is to supervise discovery in an

efficient manner. The principal issues in the MDL proceedings may help guide the discovery plan

and avoid inefficiencies and unnecessary duplication.

Rule 16.1(c)(7). Early attention to likely pretrial motions can be important to facilitate

progress and efficiently manage the MDL proceedings. The manner and timing in which certain

At its June 6, 2023 meeting, the Standing Committee removed this sentence from the committee note.

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legal and factual issues are to be addressed by the court can be important in determining the most

efficient method for discovery.

Rule 16.1(c)(8). The Rule 16.1(a) conference is the initial MDL management conference.

Although there is no requirement that there be further management conferences, courts generally

conduct management conferences throughout the duration of the MDL proceedings to effectively

manage the litigation and promote clear, orderly, and open channels of communication between

the parties and the court on a regular basis.

Rule 16.1(c)(9). Even if the court has not

appointed leadership counsel, it may be that

judicial assistance could facilitate the settlement of some or all actions before the transferee judge.

Ultimately, the question whether parties reach a settlement is just that—a decision to be made by

the parties. But as recognized in Rule 16(a)(5) and 16(c)(2)(I), the court may assist the parties in

settlement efforts. In MDL proceedings, in addition to mediation and other dispute resolution

alternatives, the court’s use of a magistrate judge or a master, focused discovery orders, timely

adjudication of principal legal issues, selection of representative bellwether trials, and coordination

with state courts may facilitate settlement.

Rule 16.1(c)(10). Actions that are filed in or removed to federal court after the Judicial

Panel has created the MDL proceedings are treated as “tagalong” actions and transferred from the

district where they were filed to the transferee court.

When large numbers of tagalong actions are anticipated, some parties have stipulated to

“direct filing” orders entered by the court to provide a method to avoid the transferee judge

receiving numerous cases through transfer rather than direct filing. If a direct filing order is

entered, it is important to address matters that can arise later, such as properly handling any

jurisdictional or venue issues that might be presented, identifying the appropriate transferor district

court for transfer at the end of the pretrial phase, how time limits such as statutes of limitations

should be handled, and how choice of law issues should be addressed.

Rule 16.1(c)(11). On occasion there are actions in other courts that are related to the MDL

proceedings. Indeed, a number of state court systems (e.g., California and New Jersey) have

mechanisms like § 1407 to aggregate separate actions in their courts. In addition, it may sometimes

happen that a party to an MDL proceeding may become a party to another action that presents

issues related to or bearing on issues in the MDL proceeding.

The existence of such actions can have important consequences for the management of the

MDL proceedings. For example, avoiding overlapping discovery is often important. If the court is

considering adopting a common benefit fund order, consideration of the relative importance of the

various proceedings may be important to ensure a fair arrangement. It is important that the MDL

transferee judge be aware of whether such proceedings in other courts have been filed or are

anticipated.

The phrase “Even if the court has not” was changed to “Whether or not the court has” at the June 6, 2023

Standing Committee meeting.

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Rule 16.1(c)(12). MDL transferee judges may refer matters to a magistrate judge or a

master to expedite the pretrial process or to play a part in settlement negotiations. It can be valuable

for the court to know the parties’ positions about the possible appointment of a master before

considering whether such an appointment should be made. Rule 53 prescribes procedures for

appointment of a master.

Rule 16.1(d). Effective and efficient management of MDL proceedings benefits from a

comprehensive management order. A management order need not address all matters designated

under Rule 16.1(c) if the court determines the matters are not significant to the MDL proceedings

or would better be addressed at a subsequent conference. There is no requirement under Rule 16.1

that the court set specific time limits or other scheduling provisions as in ordinary litigation under

Rule 16(b)(3)(A). Because active judicial management of MDL proceedings must be flexible, the

court should be open to modifying its initial management order in light of subsequent

developments in the MDL proceedings. Such modification may be particularly appropriate if

leadership counsel were appointed after the initial management conference under Rule 16.1(a).

* * * * *

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PROPOSED AMENDMENT TO THE FEDERAL

RULES OF CIVIL PROCEDURE

Rule 16. Pretrial Conferences; Scheduling; 1

Management 2

* * * * * 3

(b) Scheduling and Management. 4

* * * * * 5

(3) Contents of the Order. 6

* * * * * 7

(B) Permitted Contents. 8

* * * * * 9

(iv) include the timing and 10

method for complying with 11

Rule 26(b)(5)(A) and any 12

agreements the parties reach 13

for asserting claims of 14

New material is underlined in red; matter to be omitted

is lined through.

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2 FEDERAL RULES OF CIVIL PROCEDURE

privilege or of protection as 15

trial-preparation material 16

after information is produced, 17

including agreements reached 18

under Federal Rule of 19

Evidence 502; 20

* * * * * 21

Committee Note 22

Rule 16(b) is amended in tandem with an amendment 23

to Rule 26(f)(3)(D). In addition, two words – “and 24

management” – are added to the title of this rule in 25

recognition that it contemplates that the court will in many 26

instances do more than establish a schedule in its Rule 16(b) 27

order; the focus of this amendment is an illustration of such 28

activity. 29

The amendment to Rule 26(f)(3)(D) directs the 30

parties to discuss and include in their discovery plan a 31

method for complying with the requirements in Rule 32

26(b)(5)(A). It also directs that the discovery plan address 33

the timing for compliance with this requirement, in order to 34

avoid problems that can arise if issues about compliance 35

emerge only at the end of the discovery period. 36

Early attention to the particulars on this subject can 37

avoid problems later in the litigation by establishing case-38

specific procedures up front. It may be desirable for the Rule 39

16(b) order to provide for “rolling” production that may 40

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FEDERAL RULES OF CIVIL PROCEDURE 3

identify possible disputes about whether certain withheld 41

materials are indeed protected. If the parties are unable to 42

resolve those disputes between themselves, it is often 43

desirable to have them resolved at an early stage by the court, 44

in part so that the parties can apply the court’s resolution of 45

the issues in further discovery in the case. 46

Because the specific method of complying with Rule 47

26(b)(5)(A) depends greatly on the specifics of a given case 48

there is no overarching standard for all cases. In the first 49

instance, the parties themselves should discuss these 50

specifics during their Rule 26(f) conference; these 51

amendments to Rule 16(b) recognize that the court can 52

provide direction early in the case. Though the court 53

ordinarily will give much weight to the parties’ preferences, 54

the court’s order prescribing the method for complying with 55

Rule 26(b)(5)(A) does not depend on party agreement. 56

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PROPOSED AMENDMENT TO THE FEDERAL

RULES OF CIVIL PROCEDURE

Rule 16.1. Multidistrict Litigation 1

(a) Initial MDL Management Conference. After the 2

Judicial Panel on Multidistrict Litigation orders the 3

transfer of actions, the transferee court should 4

schedule an initial management conference to 5

develop a management plan for orderly pretrial 6

activity in the MDL proceedings. 7

(b) Designating Coordinating Counsel for the 8

Conference. The transferee court may designate 9

coordinating counsel to: 10

(1) assist the court with the conference; and 11

(2) work with plaintiffs or with defendants to 12

prepare for the conference and prepare any 13

report ordered under Rule 16.1(c). 14

New material is underlined in red.

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2 FEDERAL RULES OF CIVIL PROCEDURE

transferee court should order the parties to meet and 16

prepare a report to be submitted to the court before 17

the conference begins. The report must address any 18

matter designated by the court, which may include 19

any matter listed below or in Rule 16. The report may 20

also address any other matter the parties wish to 21

bring to the court’s attention. 22

(1) whether leadership counsel should be 23

appointed, and if so: 24

(A) the procedure for selecting them and 25

whether the appointment should be 26

reviewed periodically during the 27

MDL proceedings; 28

(B) the structure of leadership counsel, 29

including their responsibilities and 30

authority in conducting pretrial 31

activities; 32

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FEDERAL RULES OF CIVIL PROCEDURE 3

(D) proposed methods for them to 34

regularly communicate with and 35

report to the court and nonleadership 36

counsel; 37

(E) any limits on activity by 38

nonleadership counsel; and 39

(F) whether and, if so, when to establish 40

a means for compensating leadership 41

counsel; 42

(2) identifying any previously entered 43

scheduling or other orders and stating 44

whether they should be vacated or modified; 45

(3) identifying the principal factual and legal 46

issues likely to be presented in the MDL 47

proceedings; 48

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4 FEDERAL RULES OF CIVIL PROCEDURE

(4) how and when the parties will exchange 49

information about the factual bases for their 50

claims and defenses; 51

(5) whether consolidated pleadings should be 52

prepared to account for multiple actions 53

included in the MDL proceedings; 54

(6) a proposed plan for discovery, including 55

methods to handle it efficiently; 56

(7) any likely pretrial motions and a plan for 57

addressing them; 58

(8) a schedule for additional management 59

conferences with the court; 60

(9) whether the court should consider measures 61

to facilitate settlement of some or all actions 62

before the court, including measures 63

identified in Rule 16(c)(2)(I); 64

(10) how to manage the filing of new actions in 65

the MDL proceedings; 66

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FEDERAL RULES OF CIVIL PROCEDURE 5

(11) whether related actions have been filed or are 67

expected to be filed in other courts, and 68

whether to consider possible methods for 69

coordinating with them; and 70

(12) whether matters should be referred to a 71

magistrate judge or a master. 72

(d) Initial MDL Management Order. After the 73

conference, the court should enter an initial MDL 74

management order addressing the matters designated 75

under Rule 16.1(c) – and any other matters in the 76

court’s discretion. This order controls the MDL 77

proceedings until the court modifies it. 78

Committee Note 79

The Multidistrict Litigation Act, 28 U.S.C. § 1407, 80

was adopted in 1968. It empowers the Judicial Panel on 81

Multidistrict Litigation to transfer one or more actions for 82

coordinated or consolidated pretrial proceedings, to promote 83

the just and efficient conduct of such actions. The number of 84

civil actions subject to transfer orders from the Panel has 85

increased significantly since the statute was enacted. In 86

recent years, these actions have accounted for a substantial 87

portion of the federal civil docket. There previously was no 88

reference to multidistrict litigation in the Civil Rules and, 89

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6 FEDERAL RULES OF CIVIL PROCEDURE

thus, the addition of Rule 16.1 is designed to provide a 90

framework for the initial management of MDL proceedings. 91

Not all MDL proceedings present the type of 92

management challenges this rule addresses. On the other 93

hand, other multiparty litigation that did not result from a 94

Judicial Panel transfer order may present similar 95

management challenges. For example, multiple actions in a 96

single district (sometimes called related cases and assigned 97

by local rule to a single judge) may exhibit characteristics 98

similar to MDL proceedings. In such situations, courts may 99

find it useful to employ procedures similar to those Rule 16.1 100

identifies for MDL proceedings in their handling of those 101

multiparty proceedings. In both MDL proceedings and other 102

multiparty litigation, the Manual for Complex Litigation 103

also may be a source of guidance. 104

Rule 16.1(a). Rule 16.1(a) recognizes that the 105

transferee judge regularly schedules an initial MDL 106

management conference soon after the Judicial Panel 107

transfer occurs to develop a management plan for the MDL 108

proceedings. That initial MDL management conference 109

ordinarily would not be the only management conference 110

held during the MDL proceedings. Although holding an 111

initial MDL management conference in MDL proceedings is 112

not mandatory under Rule 16.1(a), early attention to the 113

matters identified in Rule 16.1(c) may be of great value to 114

the transferee judge and the parties. 115

Rule 16.1(b). Rule 16.1(b) recognizes the court may 116

designate coordinating counsel -- perhaps more often on the 117

plaintiff than the defendant side -- to ensure effective and 118

coordinated discussion and to provide an informative report 119

for the court to use during the initial MDL management 120

conference. 121

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FEDERAL RULES OF CIVIL PROCEDURE 7

While there is no requirement that the court designate 122

coordinating counsel, the court should consider whether 123

such a designation could facilitate the organization and 124

management of the action at the initial MDL management 125

conference. The court may designate coordinating counsel 126

to assist the court before appointing leadership counsel. In 127

some MDL proceedings, counsel may be able to organize 128

themselves prior to the initial MDL management conference 129

such that the designation of coordinating counsel may not be 130

necessary. 131

Rule 16.1(c). The court ordinarily should order the 132

parties to meet to provide a report to the court about the 133

matters designated in the court’s Rule 16.1(c) order prior to 134

the initial MDL management conference. This should be a 135

single report, but it may reflect the parties’ divergent views 136

on these matters. The court may select which matters listed 137

in Rule 16.1(c) or Rule 16 should be included in the report 138

submitted to the court, and may also include any other 139

matter, whether or not listed in those rules. Rules 16.1(c) and 140

16 provide a series of prompts for the court and do not 141

constitute a mandatory checklist for the transferee judge to 142

follow. Experience has shown, however, that the matters 143

identified in Rule 16.1(c)(1)-(12) are often important to the 144

management of MDL proceedings. In addition to the matters 145

the court has directed counsel to address, the parties may 146

choose to discuss and report about other matters that they 147

believe the transferee judge should address at the initial 148

MDL management conference. 149

Rule 16.1(c)(1). Appointment of leadership counsel 150

is not universally needed in MDL proceedings. But, to 151

manage the MDL proceedings, the court may decide to 152

appoint leadership counsel. This provision calls attention to 153

a number of topics the court might consider if appointment 154

of leadership counsel seems warranted. 155

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8 FEDERAL RULES OF CIVIL PROCEDURE

The first is the procedure for selecting such 156

leadership counsel, addressed in subparagraph (A). There is 157

no single method that is best for all MDL proceedings. The 158

transferee judge has a responsibility in the selection process 159

to ensure that the lawyers appointed to leadership positions 160

are capable and experienced and that they will responsibly 161

and fairly represent plaintiffs, keeping in mind the benefits 162

of different experiences, skill, knowledge, geographical 163

distributions, and backgrounds. Courts have considered the 164

nature of the actions and parties, the qualifications of each 165

individual applicant, litigation needs, access to resources, the 166

different skills and experience each lawyer will bring to the 167

role, and how the lawyers will complement one another and 168

work collectively. 169

MDL proceedings do not have the same 170

commonality requirements as class actions, so substantially 171

different categories of claims or parties may be included in 172

the same MDL proceeding and leadership may be comprised 173

of attorneys who represent parties asserting a range of claims 174

in the MDL proceeding. For example, in some MDL 175

proceedings there may be claims by individuals who 176

suffered injuries, and also claims by third-party payors who 177

paid for medical treatment. The court may sometimes need 178

to take these differences into account in making leadership 179

appointments. 180

Courts have selected leadership counsel through 181

combinations of formal applications, interviews, and 182

recommendations from other counsel and judges who have 183

experience with MDL proceedings. If the court has 184

appointed coordinating counsel under Rule 16.1(b), 185

experience with coordinating counsel’s performance in that 186

role may support consideration of coordinating counsel for a 187

leadership position, but appointment under Rule 16.1(b) is 188

primarily focused on coordination of the Rule 16.1(c) 189

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FEDERAL RULES OF CIVIL PROCEDURE 9

meeting and preparation of the resulting report to the court 190

for use at the initial MDL management conference under 191

Rule 16.1(a). 192

The rule also calls for a report to the court on whether 193

appointment to leadership should be reviewed periodically. 194

Periodic review can be an important method for the court to 195

manage the MDL proceeding. 196

In some MDL proceedings it may be important that 197

leadership counsel be organized into committees with 198

specific duties and responsibilities. Subparagraph (B) of the 199

rule therefore prompts counsel to provide the court with 200

specifics on the leadership structure that should be 201

employed. 202

Subparagraph (C) recognizes that, in addition to 203

managing pretrial proceedings, another important role for 204

leadership counsel in some MDL proceedings is to facilitate 205

possible settlement. Even in large MDL proceedings, the 206

question whether the parties choose to settle a claim is just 207

that -- a decision to be made by those particular parties. 208

Nevertheless, leadership counsel ordinarily play a key role 209

in communicating with opposing counsel and the court about 210

settlement and facilitating discussions about resolution. It is 211

often important that the court be regularly apprised of 212

developments regarding potential settlement of some or all 213

actions in the MDL proceeding. In its supervision of 214

leadership counsel, the court should make every effort to 215

ensure that leadership counsel’s participation in any 216

settlement process is appropriate. 217

One of the important tasks of leadership counsel is to 218

communicate with the court and with nonleadership counsel 219

as proceedings unfold. Subparagraph (D) directs the parties 220

to report how leadership counsel will communicate with the 221

court and nonleadership counsel. In some instances, the 222

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10 FEDERAL RULES OF CIVIL PROCEDURE

court or leadership counsel have created websites that permit 223

nonleadership counsel to monitor the MDL proceedings, and 224

sometimes online access to court hearings provides a method 225

for monitoring the proceedings. 226

Another responsibility of leadership counsel is to 227

organize the MDL proceedings in accord with the court’s 228

management order under Rule 16.1(d). In some MDLs, there 229

may be tension between the approach that leadership counsel 230

takes in handling pretrial matters and the preferences of 231

individual parties and nonleadership counsel. As 232

subparagraph (E) recognizes, it may be necessary for the 233

court to give priority to leadership counsel’s pretrial plans 234

when they conflict with initiatives sought by nonleadership 235

counsel. The court should, however, ensure that 236

nonleadership counsel have suitable opportunities to express 237

their views to the court, and take care not to interfere with 238

the responsibilities non-leadership counsel owe their clients. 239

Finally, subparagraph (F) addresses whether and 240

when to establish a means to compensate leadership counsel 241

for their added responsibilities. Courts have entered orders 242

pursuant to the common benefit doctrine establishing 243

specific protocols for common benefit work and expenses. 244

But it may be best to defer entering a specific order until well 245

into the proceedings, when the court is more familiar with 246

the proceedings. 247

Rule 16.1(c)(2). When multiple actions are 248

transferred to a single district pursuant to 28 U.S.C. § 1407, 249

those actions may have reached different procedural stages 250

in the district courts from which cases were transferred 251

(“transferor district courts”). In some, Rule 26(f) 252

conferences may have occurred and Rule 16(b) scheduling 253

orders may have been entered. Those scheduling orders are 254

likely to vary. Managing the centralized MDL proceedings 255

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FEDERAL RULES OF CIVIL PROCEDURE 11

in a consistent manner may warrant vacating or modifying 256

scheduling orders or other orders entered in the transferor 257

district courts, as well as any scheduling orders previously 258

entered by the transferee judge. 259

Rule 16.1(c)(3). Orderly and efficient pretrial 260

activity in MDL proceedings can be facilitated by early 261

identification of the principal factual and legal issues likely 262

to be presented. Depending on the issues presented, the court 263

may conclude that certain factual issues should be pursued 264

through early discovery, and certain legal issues should be 265

addressed through early motion practice. 266

Rule 16.1(c)(4). Experience has shown that in MDL 267

proceedings an exchange of information about the factual 268

bases for claims and defenses can facilitate efficient 269

management. Some courts have utilized “fact sheets” or a 270

“census” as methods to take a survey of the claims and 271

defenses presented, largely as a management method for 272

planning and organizing the proceedings. 273

The level of detail called for by such methods should 274

be carefully considered to meet the purpose to be served and 275

avoid undue burdens. Whether early exchanges should occur 276

may depend on a number of factors, including the types of 277

cases before the court. And the timing of these exchanges 278

may depend on other factors, such as whether motions to 279

dismiss or other early matters might render the effort needed 280

to exchange information unwarranted. Other factors might 281

include whether there are legal issues that should be 282

addressed (e.g., general causation or preemption) and the 283

number of plaintiffs in the MDL proceeding. 284

Rule 16.1(c)(5). For case management purposes, 285

some courts have required consolidated pleadings, such as 286

master complaints and answers in addition to short form 287

complaints. Such consolidated pleadings may be useful for 288

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12 FEDERAL RULES OF CIVIL PROCEDURE

determining the scope of discovery and may also be 289

employed in connection with pretrial motions, such as 290

motions under Rule 12 or Rule 56. The relationship between 291

the consolidated pleadings and individual pleadings filed in 292

or transferred to the MDL proceeding depends on the 293

purpose of the consolidated pleadings in the MDL 294

proceedings. Decisions regarding whether to use master 295

pleadings can have significant implications in MDL 296

proceedings, as the Supreme Court noted in Gelboim v. Bank 297

of America Corp., 574 U.S. 405, 413 n.3 (2015). 298

Rule 16.1(c)(6). A major task for the MDL transferee 299

judge is to supervise discovery in an efficient manner. The 300

principal issues in the MDL proceedings may help guide the 301

discovery plan and avoid inefficiencies and unnecessary 302

duplication. 303

Rule 16.1(c)(7). Early attention to likely pretrial 304

motions can be important to facilitate progress and 305

efficiently manage the MDL proceedings. The manner and 306

timing in which certain legal and factual issues are to be 307

addressed by the court can be important in determining the 308

most efficient method for discovery. 309

Rule 16.1(c)(8). The Rule 16.1(a) conference is the 310

initial MDL management conference. Although there is no 311

requirement that there be further management conferences, 312

courts generally conduct management conferences 313

throughout the duration of the MDL proceedings to 314

effectively manage the litigation and promote clear, orderly, 315

and open channels of communication between the parties 316

and the court on a regular basis. 317

Rule 16.1(c)(9). Whether or not the court has 318

appointed leadership counsel, it may be that judicial 319

assistance could facilitate the settlement of some or all 320

actions before the transferee judge. Ultimately, the question 321

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FEDERAL RULES OF CIVIL PROCEDURE 13

whether parties reach a settlement is just that -- a decision to 322

be made by the parties. But as recognized in Rule 16(a)(5) 323

and 16(c)(2)(I), the court may assist the parties in settlement 324

efforts. In MDL proceedings, in addition to mediation and 325

other dispute resolution alternatives, the court’s use of a 326

magistrate judge or a master, focused discovery orders, 327

timely adjudication of principal legal issues, selection of 328

representative bellwether trials, and coordination with state 329

courts may facilitate settlement. 330

Rule 16.1(c)(10). Actions that are filed in or 331

removed to federal court after the Judicial Panel has created 332

the MDL proceedings are treated as “tagalong” actions and 333

transferred from the district where they were filed to the 334

transferee court. 335

When large numbers of tagalong actions are 336

anticipated, some parties have stipulated to “direct filing” 337

orders entered by the court to provide a method to avoid the 338

transferee judge receiving numerous cases through transfer 339

rather than direct filing. If a direct filing order is entered, it 340

is important to address matters that can arise later, such as 341

properly handling any jurisdictional or venue issues that 342

might be presented, identifying the appropriate transferor 343

district court for transfer at the end of the pretrial phase, how 344

time limits such as statutes of limitations should be handled, 345

and how choice of law issues should be addressed. 346

Rule 16.1(c)(11). On occasion there are actions in 347

other courts that are related to the MDL proceedings. Indeed, 348

a number of state court systems (e.g., California and New 349

Jersey) have mechanisms like § 1407 to aggregate separate 350

actions in their courts. In addition, it may sometimes happen 351

that a party to an MDL proceeding may become a party to 352

another action that presents issues related to or bearing on 353

issues in the MDL proceeding. 354

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14 FEDERAL RULES OF CIVIL PROCEDURE

The existence of such actions can have important 355

consequences for the management of the MDL proceedings. 356

For example, avoiding overlapping discovery is often 357

important. If the court is considering adopting a common 358

benefit fund order, consideration of the relative importance 359

of the various proceedings may be important to ensure a fair 360

arrangement. It is important that the MDL transferee judge 361

be aware of whether such proceedings in other courts have 362

been filed or are anticipated. 363

Rule 16.1(c)(12). MDL transferee judges may refer 364

matters to a magistrate judge or a master to expedite the 365

pretrial process or to play a part in settlement negotiations. 366

It can be valuable for the court to know the parties’ positions 367

about the possible appointment of a master before 368

considering whether such an appointment should be made. 369

Rule 53 prescribes procedures for appointment of a master. 370

Rule 16.1(d). Effective and efficient management of 371

MDL proceedings benefits from a comprehensive 372

management order. A management order need not address 373

all matters designated under Rule 16.1(c) if the court 374

determines the matters are not significant to the MDL 375

proceedings or would better be addressed at a subsequent 376

conference. There is no requirement under Rule 16.1 that the 377

court set specific time limits or other scheduling provisions 378

as in ordinary litigation under Rule 16(b)(3)(A). Because 379

active judicial management of MDL proceedings must be 380

flexible, the court should be open to modifying its initial 381

management order in light of subsequent developments in 382

the MDL proceedings. Such modification may be 383

particularly appropriate if leadership counsel were appointed 384

after the initial management conference under Rule 16.1(a). 385

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PROPOSED AMENDMENT TO THE FEDERAL

RULES OF CIVIL PROCEDURE

Rule 26. Duty to Disclose; General Provisions 1

Governing Discovery 2

* * * * * 3

(f) Conference of the Parties; Planning for 4

Discovery. 5

* * * * * 6

(3) Discovery Plan. A discovery plan must state 7

the parties’ views and proposals on: 8

* * * * * 9

(D) any issues about claims of privilege 10

or of protection as trial-preparation 11

materials, including the timing and 12

method for complying with 13

Rule 26(b)(5)(A) and – if the parties 14

New material is underlined in red; matter to be omitted

is lined through.

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2 FEDERAL RULES OF CIVIL PROCEDURE

agree on a procedure to assert these 15

claims after production – whether to 16

ask the court to include their 17

agreement in an order under Federal 18

Rule of Evidence 502; 19

* * * * * 20

Committee Note 21

Rule 26(f)(3)(D) is amended to address concerns 22

about application of the requirement in Rule 26(b)(5)(A) that 23

producing parties describe materials withheld on grounds of 24

privilege or as trial-preparation materials. Compliance with 25

Rule 26(b)(5)(A) can involve very large costs, often 26

including a document-by-document “privilege log.” 27

Rule 26(b)(5)(A) was adopted in 1993, and from the 28

outset was intended to recognize the need for flexibility. 29

Nevertheless, the rule has not been consistently applied in a 30

flexible manner, sometimes imposing undue burdens. 31

This amendment directs the parties to address the 32

question how they will comply with Rule 26(b)(5)(A) in 33

their discovery plan, and report to the court about this topic. 34

A companion amendment to Rule 16(b)(3)(B)(iv) seeks to 35

prompt the court to include provisions about complying with 36

Rule 26(b)(5)(A) in scheduling or case management orders. 37

Requiring this discussion at the outset of litigation is 38

important to avoid problems later on, particularly if 39

objections to a party’s compliance with Rule 26(b)(5)(A) 40

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FEDERAL RULES OF CIVIL PROCEDURE 3

might otherwise emerge only at the end of the discovery 41

period. 42

This amendment also seeks to grant the parties 43

maximum flexibility in designing an appropriate method for 44

identifying the grounds for withholding materials. 45

Depending on the nature of the litigation, the nature of the 46

materials sought through discovery, and the nature of the 47

privilege or protection involved, what is needed in one case 48

may not be necessary in another. No one-size-fits-all 49

approach would actually be suitable in all cases. 50

In some cases, it may be suitable to have the 51

producing party deliver a document-by-document listing 52

with explanations of the grounds for withholding the listed 53

materials. 54

In some cases some sort of categorical approach 55

might be effective to relieve the producing party of the need 56

to list many withheld documents. For example, it may be that 57

communications between a party and outside litigation 58

counsel could be excluded from the listing, and in some 59

cases a date range might be a suitable method of excluding 60

some materials from the listing requirement. These or other 61

methods may enable counsel to reduce the burden and 62

increase the effectiveness of complying with Rule 63

26(b)(5)(A). But the use of categories calls for careful 64

drafting and application keyed to the specifics of the action. 65

Requiring that discussion of this topic begin at the 66

outset of the litigation and that the court be advised of the 67

parties’ plans or disagreements in this regard is a key 68

purpose of this amendment. Production of a privilege log 69

near the close of the discovery period can create serious 70

problems. Often it will be valuable to provide for “rolling” 71

production of materials and an appropriate description of the 72

nature of the withheld material. In that way, areas of 73

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4 FEDERAL RULES OF CIVIL PROCEDURE

potential dispute may be identified and, if the parties cannot 74

resolve them, presented to the court for resolution. 75

Early design of methods to comply with 76

Rule 26(b)(5)(A) may also reduce the frequency of claims 77

that producing parties have over-designated responsive 78

materials. Such concerns may arise, in part, due to failure of 79

the parties to communicate meaningfully about the nature of 80

the privileges and materials involved in the given case. It can 81

be difficult to determine whether certain materials are 82

subject to privilege protection, and candid early 83

communication about the difficulties to be encountered in 84

making and evaluating such determinations can avoid later 85

disputes. 86

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APPENDIX

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§ 440 Procedures for Committees on Rules of Practice and Procedure

This section contains the "Procedures for the Judicial Conference's Committee on Rules of

Practice and Procedure and Its Advisory Rules Committees," last amended in September

2011. JCUS-SEP 2011, p. 35.

§ 440.10 Overview

The Rules Enabling Act, 28 U.S.C. §§ 2071–2077, authorizes the Supreme Court to prescribe

general rules of practice and procedure and rules of evidence for the federal courts. Under the

Act, the Judicial Conference must appoint a standing committee, and may appoint advisory

committees to recommend new and amended rules. Section 2073 requires the Judicial

Conference to publish the procedures that govern the work of the Committee on Rules of

Practice and Procedure (the "Standing Committee") and its advisory committees on the Rules of

Appellate, Bankruptcy, Civil, and Criminal Procedure and on the Evidence Rules. See 28 U.S.C.

§ 2073(a)(1). These procedures do not limit the rules committees' authority. Failure to comply

with them does not invalidate any rules committee action. Cf. 28 U.S.C. § 2073(e).

§ 440.20 Advisory Committees

§ 440.20.10 Functions

Each advisory committee must engage in "a continuous study of the operation and effect of the

general rules of practice and procedure now or hereafter in use" in its field, taking into

consideration suggestions and recommendations received from any source, new statutes and

court decisions affecting the rules, and legal commentary. See 28 U.S.C. § 331.

§ 440.20.20 Suggestions and Recommendations

Suggestions and recommendations on the rules are submitted to the Secretary of the Standing

Committee at the Administrative Office of the United States Courts, Washington, D.C. The

Secretary will acknowledge the suggestions or recommendations and refer them to the

appropriate advisory committee. If the Standing Committee takes formal action on them, that

action will be reflected in the Standing Committee's minutes, which are posted on the judiciary's

rulemaking website.

§ 440.20.30 Drafting Rule Changes

(a) Meetings

Each advisory committee meets at the times and places that the chair

designates. Advisory committee meetings must be open to the public, except

when the committee — in open session and with a majority present —

determines that it is in the public interest to have all or part of the meeting closed

and states the reason. Each meeting must be preceded by notice of the time and

place, published in the Federal Register and on the judiciary's rulemaking

website, sufficiently in advance to permit interested persons to attend.

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(b) Preparing Draft Changes

The reporter assigned to each advisory committee should prepare for the

committee, under the direction of the committee or its chair, draft rule changes,

committee notes explaining their purpose, and copies or summaries of written

recommendations and suggestions received by the committee.

The advisory committee studies the rules' operation and effect. It meets to

consider proposed new and amended rules (together with committee notes),

whether changes should be made, and whether they should be submitted to the

Standing Committee with a recommendation to approve for publication. The

submission must be accompanied by a written report explaining the advisory

committee's action and its evaluation of competing considerations.

§ 440.20.40 Publication and Public Hearings

(a) Publication

Before any proposed rule change is published, the Standing Committee must

approve publication. The Secretary then arranges for printing and circulating the

proposed change to the bench, bar, and public. Publication should be as wide as

possible. The proposed change must be published in the Federal Register and

on the judiciary's rulemaking website. The Secretary must:

(1) notify members of Congress, federal judges, and the chief justice

of each state's highest court of the proposed change, with a link to

the judiciary's rulemaking website; and

(2) provide copies of the proposed change to legal-publishing firms

with a request to timely include it in publications.

(b) Public Comment Period

A public comment period on the proposed change must extend for at least six

months after notice is published in the Federal Register, unless a shorter period

is approved under paragraph (d) of this section.

The advisory committee must conduct public hearings on the proposed change

unless eliminating them is approved under paragraph (d) of this section or not

enough witnesses ask to testify at a particular hearing. The hearings are held at

the times and places that the advisory committee's chair determines. Notice of

the times and places must be published in the Federal Register and on

the judiciary's rulemaking website. The hearings must be transcribed. Whenever

possible, a transcript should be produced by a qualified court reporter.

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(d) Expedited Procedures

The Standing Committee may shorten the public comment period or eliminate

public hearings if it determines that the administration of justice requires a

proposed rule change to be expedited and that appropriate notice to the public

can still be provided and public comment obtained. The Standing Committee may

also eliminate public notice and comment for a technical or conforming

amendment if the Committee determines that they are unnecessary. When an

exception is made, the chair must advise the Judicial Conference and provide the

reasons.

§ 440.20.50 Procedures After the Comment Period

(a) Summary of Comments

When the public comment period ends, the reporter must prepare a summary of

the written comments received and of the testimony presented at public hearings.

If the number of comments is very large, the reporter may summarize and

aggregate similar individual comments, identifying the source of each one.

(b) Advisory Committee Review; Republication

The advisory committee reviews the proposed change in light of any comments

and testimony. If the advisory committee makes substantial changes, the

proposed rule should be republished for an additional period of public comment

unless the advisory committee determines that republication would not be

necessary to achieve adequate public comment and would not assist the work of

the rules committees.

(

c) Submission to the Standing Committee

The advisory committee submits to the Standing Committee the proposed

change and committee note that it recommends for approval. Each submission

must:

(1) be accompanied by a separate report of the comments received;

(2) explain the changes made after the original publication; and

(3) include an explanation of competing considerations examined by

the advisory committee.

§ 440.20.60 Preparing Minutes and Maintaining Records

(a) Minutes of Meetings

The advisory committee's chair arranges for preparing the minutes of the

committee meetings.

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(b) Records

The advisory committee's records consist of:

o written suggestions received from the public;

o written comments received from the public on drafts of proposed rules;

o the committee's responses to public suggestions and comments;

o other correspondence with the public about proposed rule changes;

o electronic recordings and transcripts of public hearings (when prepared);

o the reporter's summaries of public comments and of testimony from public

hearings;

o agenda books and materials prepared for committee meetings;

o minutes of committee meetings;

o approved drafts of rule changes; and

o reports to the Standing Committee.

The records must be posted on the judiciary's rulemaking website, except for

general public correspondence about proposed rule changes and electronic

recordings of hearings when transcripts are prepared. This correspondence and

archived records are maintained by the AO and are available for public

inspection. Minutes of a closed meeting may be made available to the public but

with any deletions necessary to avoid frustrating the purpose of closing the

meeting under § 440.20.30(a).

§ 440.30 Standing Committee

§ 440.30.10 Functions

The Standing Committee's functions include:

(a) coordinating the work of the advisory committees;

(b) suggesting proposals for them to study;

(d) for proposed rule changes that have completed that process, deciding whether to

accept or modify the proposals and transmit them with its own recommendation

to the Judicial Conference, recommit them to the advisory committee for further

study and consideration, or reject them.

§ 440.30.20 Procedures

(a) Meetings

The Standing Committee meets at the times and places that the chair

designates. Committee meetings must be open to the public, except when the

Committee — in open session and with a majority present — determines that it is

in the public interest to have all or part of the meeting closed and states the

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reason. Each meeting must be preceded by notice of the time and place,

published in the Federal Register and on the judiciary's rulemaking website,

sufficiently in advance to permit interested persons to attend.

(b) Attendance by the Advisory Committee Chairs and Reporters

The advisory committees' chairs and reporters should attend the Standing

Committee meetings to present their committees' proposed rule changes and

committee notes, to inform the Standing Committee about ongoing work, and to

participate in the discussions.

The Standing Committee may accept, reject, or modify a proposed change or

committee note, or may return the proposal to the advisory committee with

instructions or recommendations.

(d) Transmission to the Judicial Conference

The Standing Committee must transmit to the Judicial Conference the proposed

rule changes and committee notes that it approves, together with the advisory

committee report. The Standing Committee's report includes its own

recommendations and explains any changes that it made.

§ 440.30.30 Preparing Minutes and Maintaining Records

(a) Minutes of Meetings

The Secretary prepares minutes of Standing Committee meetings.

(b) Records

The Standing Committee's records consist of:

o the minutes of Standing Committee and advisory committee meetings;

o agenda books and materials prepared for Standing Committee meetings;

o reports to the Judicial Conference; and

o official correspondence about rule changes, including correspondence with

advisory committee chairs.

(

c) Public Access to Records

The records must be posted on the judiciary's rulemaking website, except for

official correspondence about rule changes. This correspondence and archived

records are maintained by the AO and are available for public inspection.

Minutes of a closed meeting may be made available to the public but with any

deletions necessary to avoid frustrating the purpose of closing the meeting

under § 440.30.20(a).

Last revised (Transmittal 01-026) May 27, 2022

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COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

(Standing Committee)

Effective: March 20, 2023 to September 30, 2023 Page 2

Revised: July 17, 2023

Chair

Reporter

Honorable John D. Bates

United States District Court

Washington, DC

Professor Catherine T. Struve

University of Pennsylvania Law School

Philadelphia, PA

Members

Honorable Paul J. Barbadoro

United States District Court

Concord, NH

Elizabeth J. Cabraser, Esq.

Lieff Cabraser Heimann & Bernstein, LLP

San Francisco, CA

Robert J. Giuffra, Jr., Esq.

Sullivan & Cromwell LLP

New York, NY

Honorable William J. Kayatta, Jr.

United States Court of Appeals

Portland, ME

Honorable Carolyn B. Kuhl

Superior Court of the State of California

Los Angeles, CA

Dean Troy A. McKenzie

New York University School of Law

New York, NY

Honorable Patricia A. Millett

United States Court of Appeals

Washington, DC

Honorable Lisa O. Monaco

Deputy Attorney General (ex officio)

United States Department of Justice

Washington, DC

Andrew J. Pincus, Esq.

Mayer Brown LLP

Washington, DC

Honorable Gene E.K. Pratter

United States District Court

Philadelphia, PA

Honorable D. Brooks Smith

United States Court of Appeals

Duncansville, PA

Kosta Stojilkovic, Esq.

Wilkinson Stekloff LLP

Washington, DC

Honorable Jennifer G. Zipps

United States District Court

Tucson, AZ

Consultants

Professor Daniel R. Coquillette

Boston College Law School

Newton Centre, MA

Professor Bryan A. Garner

LawProse, Inc.

Dallas, TX

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COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

(Standing Committee)

Effective: March 20, 2023 to September 30, 2023 Page 3

Revised: July 17, 2023

Consultants (continued)

Professor Joseph Kimble

Thomas M. Cooley Law School

Lansing, MI

Joseph F. Spaniol, Jr., Esq.

Bethesda, MD

Secretary to the Standing Committee

H. Thomas Byron III, Esq.

Administrative Office of the U.S. Courts

Office of the General Counsel – Rules Committee Staff

Washington, DC

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ADVISORY COMMITTEE ON APPELLATE RULES

Effective: March 20, 2023 to September 30, 2023 Page 1

Revised: July 17, 2023

Chair

Reporter

Honorable Jay S. Bybee

United States Court of Appeals

Las Vegas, NV

Professor Edward Hartnett

Seton Hall University School of Law

Newark, NJ

Members

George W. Hicks, Jr., Esq.

Kirkland & Ellis LLP

Washington, DC

Professor Bert Huang

Columbia Law School

New York, NY

Honorable Leondra R. Kruger

Supreme Court of California

San Francisco, CA

Honorable Carl J. Nichols

United States District Court

Washington, DC

Honorable Elizabeth B. Prelogar

Solicitor General (ex officio)

United States Department of Justice

Washington, DC

Danielle Spinelli, Esq.

Wilmer Cutler Pickering Hale and Dorr LLP

Washington DC

Honorable Sidney R. Thomas

United States Court of Appeals

Billings, MT

Honorable Richard C. Wesley

United States Court of Appeals

Geneseo, NY

Lisa B. Wright, Esq.

Office of the Federal Public Defender

Washington, DC

Liaisons

Honorable Daniel A. Bress

(Bankruptcy)

United States Court of Appeals

San Francisco, CA

Andrew J. Pincus, Esq.

(Standing)

Mayer Brown LLP

Washington, DC

Clerk of Court Representative

Molly Dwyer, Esq.

United States Court of Appeals

San Francisco, CA

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ADVISORY COMMITTEE ON BANKRUPTCY RULES

Effective: March 20, 2023 to September 30, 2023 Page 1

Revised: July 17, 2023

Chair

Reporter

Honorable Rebecca B. Connelly

United States Bankruptcy Court

Harrisonburg, VA

Professor S. Elizabeth Gibson

University of North Carolina at Chapel Hill

Chapel Hill, NC

Associate Reporter

Professor Laura B. Bartell

Wayne State University Law School

Detroit, MI

Members

Honorable Daniel A. Bress

United States Court of Appeals

San Francisco, CA

Jenny L. Doling, Esq.

J. Doling Law PC

Palm Desert, CA

Honorable Michelle M. Harner

United States Bankruptcy Court

Baltimore, MD

Honorable Jeffery P. Hopkins

United States District Court

Cincinnati, OH

Honorable David A. Hubbert

Deputy Assistant Attorney General (ex

officio)

United States Department of Justice

Washington, DC

Honorable Ben Kahn

United States Bankruptcy Court

Greensboro, NC

Honorable Marcia S. Krieger

United States District Court

Denver, CO

Honorable Catherine P. McEwen

United States Bankruptcy Court

Tampa, FL

Debra L. Miller, Esq.

Chapter 13 Bankruptcy Trustee

South Bend, IN

Professor Scott F. Norberg

Florida International University

College of Law

Miami, FL

Honorable J. Paul Oetken

United States District Court

New York, NY

Jeremy L. Retherford, Esq.

Balch & Bingham LLP

Birmingham, AL

Damian S. Schaible, Esq.

Davis Polk & Wardwell LLP

New York, NY

Honorable George H. Wu

United States District Court

Los Angeles, CA

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ADVISORY COMMITTEE ON BANKRUPTCY RULES

Effective: March 20, 2023 to September 30, 2023 Page 2

Revised: July 17, 2023

Liaisons

Ramona D. Elliott, Esq.

(U.S. Trustees)

Executive Office for U.S. Trustees

Washington, DC

Honorable Laurel M. Isicoff

(Committee on the Administration of the

Bankruptcy System)

United States Bankruptcy Court

Miami, FL

Honorable William J. Kayatta, Jr.

(Standing)

United States Court of Appeals

Portland, ME

Clerk of Court Representative

Kenneth S. Gardner

United States Bankruptcy Court

Denver, CO

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ADVISORY COMMITTEE ON CIVIL RULES

Effective: March 20, 2023 to September 30, 2023 Page 1

Revised: July 17, 2023

Chair

Reporter

Honorable Robin L. Rosenberg

United States District Court

West Palm Beach, FL

Professor Richard L. Marcus

University of California

Hastings College of the Law

San Francisco, CA

Associate Reporter

Professor Andrew Bradt

University of California, Berkeley

Berkeley, CA

Members

Honorable Cathy Bissoon

United States District Court

Pittsburgh, PA

Honorable Jane Bland

Supreme Court of Texas

Austin, Texas

Honorable Jennifer C. Boal

United States District Court

Boston, MA

Honorable Brian M. Boynton

Principal Deputy Assistant Attorney General

(ex officio)

United States Department of Justice

Washington, DC

David J. Burman, Esq.

Perkins Coie LLP

Seattle, WA

Honorable David C. Godbey

United States District Court

Dallas, TX

Honorable Kent A. Jordan

United States Court of Appeals

Wilmington, DE

Honorable M. Hannah Lauck

United States District Court

Richmond, VA

Honorable R. David Proctor

United States District Court

Birmingham, AL

Joseph M. Sellers, Esq.

Cohen Milstein Sellers & Toll PLLC

Washington, DC

Honorable Manish S. Shah

United States District Court

Chicago, IL

Dean A. Benjamin Spencer

William & Mary Law School

Williamsburg, VA

Ariana J. Tadler, Esq.

Tadler Law LLP

Manhasset, NY

Helen E. Witt, Esq.

Kirkland & Ellis LLP

Chicago, IL

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ADVISORY COMMITTEE ON CIVIL RULES

Effective: March 20, 2023 to September 30, 2023 Page 2

Revised: July 17, 2023

Liaisons

Honorable D. Brooks Smith

(Standing)

United States Court of Appeals

Duncansville, PA

Honorable Catherine P. McEwen

(Bankruptcy)

United States Bankruptcy Court

Tampa, FL

Consultant

Professor Edward H. Cooper

University of Michigan Law School

Ann Arbor, MI

Clerk of Court Representative

Carmelita Reeder Shinn, Esq.

United States District Court

Oklahoma City, OK

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Page 153 of 157

ADVISORY COMMITTEE ON CRIMINAL RULES

Effective: March 20, 2023 to September 30, 2023 Page 1

Revised: July 17, 2023

Chair

Reporter

Honorable James C. Dever III

United States District Court

Raleigh, NC

Professor Sara Sun Beale

Duke Law School

Durham, NC

Associate Reporter

Professor Nancy J. King

Vanderbilt University Law School

Nashville, TN

Members

Honorable Andre Birotte, Jr.

United States District Court

Los Angeles, CA

Honorable Jane Boyle

United States District Court

Dallas, TX

Honorable Timothy Burgess

United States District Court

Anchorage, AK

Honorable Robert J. Conrad, Jr.

United States District Court

Charlotte, NC

Dean Roger A. Fairfax, Jr.

American University

Washington College of Law

Washington, DC

Honorable Michael J. Garcia

New York State Court of Appeals

Albany, NY

Lisa Hay, Esq.

Federal Public Defender

Portland, OR

Honorable Bruce J. McGiverin

United States District Court

San Juan, PR

Honorable Jacqueline H. Nguyen

United States Court of Appeals

Pasadena, CA

Hon. Kenneth A. Polite, Jr.

Assistant Attorney General (ex officio)

United States Department of Justice

Washington, DC

Catherine M. Recker, Esq.

Welsh & Recker PC

Philadelphia, PA

Susan M. Robinson, Esq.

Thomas Combs & Spann PLLC

Charleston, WV

Liaison

Honorable Paul J. Barbadoro

(Standing)

United States District Court

Concord, NH

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ADVISORY COMMITTEE ON CRIMINAL RULES

Effective: March 20, 2023 to September 30, 2023 Page 2

Revised: July 17, 2023

Clerk of Court Representative

Angela E. Noble, Esq.

United States District Court

Miami, FL

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Page 155 of 157

ADVISORY COMMITTEE ON EVIDENCE RULES

Effective: March 20, 2023 to September 30, 2023 Page 1

Revised: July 17, 2023

Chair

Reporter

Honorable Patrick J. Schiltz

United States District Court

Minneapolis, MN

Professor Daniel J. Capra

Fordham University School of Law

New York, NY

Members

James P. Cooney III, Esq.

Womble Bond Dickinson LLP

Charlotte, NC

Honorable Shelly Dick

United States District Court

Baton Rouge, LA

Honorable Mark S. Massa

Indiana Supreme Court

Indianapolis, IN

Honorable Marshall L. Miller

Principal Associate Deputy Attorney General

(ex officio)

United States Department of Justice

Washington, DC

Honorable Thomas D. Schroeder

United States District Court

Winston Salem, NC

Arun Subramanian, Esq.

Susman Godfrey L.L.P.

New York, NY

Honorable Richard J. Sullivan

United States Court of Appeals

New York, NY

Rene L. Valladares, Esq.

Office of the Federal Public Defender

Las Vegas, NV

Consultant

Professor Liesa Richter

University of Oklahoma School of Law

Norman, OK

Liaisons

Honorable Robert J. Conrad, Jr.

(Criminal)

United States District Court

Charlotte, NC

Honorable Carolyn B. Kuhl

(Standing)

Superior Court of the State of California

Los Angeles, CA

Honorable M. Hannah Lauck

(Civil)

United States District Court

Richmond, VA

Preliminary Draft of Proposed Amendments | August 2023

Page 156 of 157

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

Thurgood Marshall Federal Judiciary Building

Washington, DC 20544

uscourts.gov