United States Bankruptcy Court
Unless otherwise ordered, matters before Judge Drain, shall be conducted in accordance with any Case Management Order entered in the case and, to the extent not inconsistent, the following practices:
Pursuant to Local Rule 5070-1, a moving party or applicant must contact Chambers to obtain a hearing date prior to filing and serving a motion, application or any other request for relief requiring a hearing. All scheduling requests should be directed to Dorothy Li, Courtroom Deputy with the exception of chapter 13 scheduling requests, which should be directed to the Clerk’s Office.
Requests for relief requiring a hearing that are filed without first obtaining a hearing date will not be acted on.
Parties may not grant extensions of time on briefing or otherwise extend deadlines for filing papers without prior consent from Chambers.
Adjournments, other than those requested at the hearing, will be granted only if agreed to by all parties with a clear interest in the matter or, after consent is sought and denied, as granted by the Court after a request to Chambers by email, copied to the other side, and stating the basis for the request. The moving party must contact the Courtroom Deputy to obtain the adjournment.
Requests for adjournment should be made no later than 12 noon on the business day before the scheduled hearing; requests made after that time will be granted only where good cause exists for the untimely request.
All adjournments must be noticed with the filing and service of a “Notice of Adjournment” before the original hearing date. A hearing will not be officially adjourned until the Notice of Adjournment is filed on the Electronic Case Filing (ECF) System.
Requests for the entry of orders to show cause should be limited to matters that require emergency or ex parte interim relief. If the request is only to seek an expedited hearing, the Court normally directs the movant to speak to Ms. Li, to schedule the hearing on the request for expedited relief on the same day and time as the hearing on the underlying motion.
Parties must contact Chambers prior to filing a proposed order to show cause or seeking other emergency or ex parte relief (with the exception of Rule 2004 orders). (See Local Rule 9077-1(a)). Counsel should be prepared to submit the following documents for the Court’s review: a copy of the underlying motion, proposed order to show cause (in Word or WordPerfect format only) and a supporting affidavit.
If the request for an order to show cause is granted, the papers must be filed on the Electronic Case Filing (ECF) system. The Court will contact the movant regarding the disposition of the requested order to show cause.
Parties wishing to move by notice of presentment should consult Local Bankruptcy Rules 9074-1 and 2002-2 to determine what matters may be handled on presentment. These rules also describe the notice and filing requirements when presenting a motion or application by presentment. If you have a question regarding whether a matter may be heard on presentment, please contact Chambers.
Motions for relief from stay will not be considered on presentment.
Parties do not need to contact Chambers to schedule a date and time for presentment but do need to contact the Courtroom Deputy for a hearing date in the event there is an objection.
After the applicable objection period has passed, the underlying motion and an electronic version of the proposed order in Word or WordPerfect format should be emailed to Chambers. The cover must contain a representation that (i) the movant sought relief by notice of presentment and (ii) the objection period has passed and no objections were filed.
Unless directed by the Court, proposed orders shall not be emailed to Chambers until (a) if on presentment, after the objection deadline, or (b) after the Court has granted the relief.
Proposed orders may be submitted either by mail or by email; however, submission by email is preferred.
Orders submitted by mail should contain a hard copy of the order, accompanied by a CD Rom or flash drive containing an electronic copy of the order in Word or WordPerfect format.
Orders submitted by email should be sent to rdd.Chambers@nysb.uscourts.gov in Word or WordPerfect format only.
Proposed orders should not be emailed to individual members of Chambers or the Clerk’s Office, unless you are instructed to do so.
Proposed orders submitted to the Court by by email should be accompanied by a cover note and contain the following information:
The name, telephone number and email address of the person submitting the order.
The case name and the ECF document numbers of the relevant motion papers, and, if it is a chapter 13 case, that it is a chapter 13 case.
If the relief was granted by the Court, the cover note must state that the relief was granted and the date on which it was granted.
Requests for filing and maintaining information under seal may be submitted ex parte to Chambers, preferably by email, and must indicate the grounds for sealing and a proposed order. A party requesting sealing must submit to Chambers both a copy of (a) the relevant pleading or exhibit in proposed redacted form for filing on the docket and (b) the unredacted form. Every proposed order requesting sealing must provide for the movant to unseal or dispose of the confidential information at the conclusion of the matter. Every proposed sealing order must provide, in substance, that it is without prejudice to the rights of any party in interest, or the United States Trustee, to seek to unseal the document or any part of it.
Requests for chambers or status conferences should ordinarily be made by letter emailed to Chambers, together with a follow-up call to Dorothy Li, Courtroom Deputy. The letter requesting the conference should ordinarily be filed on the Electronic Case Filing (ECF) System. The letter should include the reason for the conference request, must be no longer than four pages and state whether a telephonic or in-person conference is requested.
Parties wishing to respond to the request shall do so within 24 hours with a similar letter emailed to Chambers and filed on the ECF system.
If a telephonic conference is granted, parties should submit a conference call-in number and passcode to Chambers.
Except as permitted by the Court, briefs and motions with embedded argument and citations shall be submitted in text searchable format and include a table of contents, headings, and a table of authorities.
Except as permitted by the Court, moving and responsive briefs shall be no more than 40 pages. Reply briefs shall be no more than 20 pages, in each case exclusive of the table of contents and table of authorities.
Parties wishing to schedule first day hearings in Chapter 11 cases must contact Chambers on the petition date to discuss scheduling the hearing. Two copies of first day motions should be provided to Chambers in advance of the hearing.
It is expected that Debtor’s counsel will have consulted with the United States Trustee in advance regarding all relief to be requested at the First Day Hearing.
Parties in adversary proceedings should be prepared at the first pretrial conference to submit a joint pretrial scheduling order that includes a discovery cutoff date. Judge Drain’s standard form of pretrial scheduling order can be found here: here.
Written direct examinations by affidavit or declaration on penalty of perjury of witnesses within the party’s control are expected to be used for evidentiary hearings and trials, with the declarant to be available for cross examination and re-direct. Such sworn affidavits or declarations shall be exchanged by the parties and submitted to Chambers no later than five days before trial.
Unless otherwise directed by the Court, the parties shall exchange pre-marked exhibits no less than fourteen days before trial. No less than five days before trial, the parties shall have agreed on the admissibility of as many exhibits as possible and submit such exhibits to Chambers in a joint exhibit book.
Motions in limine with respect to proposed evidence whose exclusion will materially affect the conduct of the trial must be filed at least five days before trial, with responses due two days before trial.
Pursuant to Local Rule 7007-1(b), discovery motions may not be filed until the parties have (a) conferred among themselves to resolve the dispute and (b) participated in a conference with the Court [see Conferences, above]. Parties should contact Chambers to schedule a conference as provided above.
Before any request for a conference on a discovery issue, the party requesting the conference is required to make a good faith effort to resolve the dispute with opposing counsel consistent with Local Rule 7007-1(a).
Unless the Court provides otherwise, parties wishing to participate in a hearing telephonically must register with CourtCall. Attorneys seeking to participate must be admitted to the Court or admitted pro hac vice. (See Local Rule 2090-1). Information on how to register with CourtCall can be found here.
Parties who wish to “listen in” on a hearing are not required to receive consent from Chambers prior to registering with CourtCall, nor to be admitted to the Court or to be admitted pro hac vice.
Parties that wish to make a “live” telephonic appearance in order to speak or make argument are required to receive permission from Chambers before registering with CourtCall. Parties seeking permission to participate telephonically must email email@example.com at least two business days prior to the hearing, and should be prepared to provide the following information: Name of party that the attorney is representing, the motion on which the attorney intends to argue, the reason that a telephonic appearance is necessary, and whether the party intends to submit evidence.
Absent extraordinary circumstances, counsel and pro se parties are not permitted to participate telephonically for any hearings of an evidentiary nature, including the examination of witnesses or the submission of evidence.
All questions regarding scheduling matters in chapter 13 cases should be directed to the Clerk’s Office at 914-390-4060.
Questions on all other scheduling issues should be directed to Chambers, either to the Courtroom Deputy, Dorothy Li at 914-390-4155 or, if Ms. Li cannot be reached or the matter involves request for entry of an order to show cause or other form of emergency relief or ex parte relief, the law clerk assigned to the case.
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