Judge Fred Biery
Individual Rules, Standing Orders & Policies
Limits & Logistics
Document Limits
Adjournments
- No.
- File a motion to modify a scheduling-order deadline before the deadline expires.
- A motion to continue should be filed as early as possible and show good cause; the court will rule as soon as practicable.
- +1 more
Request must include
Communication
Phone
Clerk
Page & Word Limits1 rule
Court has a standing 20 page limit. No motion for leave is needed except to exceed 20 pages.
- Page limit
- Up to 20 pages
Document Format Requirements2 rules
All case citations shall use the appropriate Westlaw citation, not Lexis citation.
May the parties provide the court with electronic versions of proposed jury instructions, verdict forms, or proposed findings of fact and conclusions of law? If so, what format should be used? Yes. Must be in a WordPerfect format.
- File type
- WordPerfect
- Jury instructions
- Verdict forms
- Proposed findings conclusions
Document Filing Requirements14 rules
Motion to Dismiss must include Certificate of Conference or will be struck.
Court's wording
The Court will strike any Federal Rule 12(b) Motion to Dismiss if it does not contain the required Certificate of Conference, which may preclude its re-filing given the time limits prescribed in Federal Rule 12(a).
All motion facts must be in numbered paragraphs with specific record citations.
Court's wording
The facts set forth in any motion shall be stated in separately numbered paragraphs with citation to a particular pleading or other part of the record supporting the party’s statement. All positions and statements contained in the body of any motion or any responses must contain specific cites to the record supporting the party’s statement. The Court will not search the record for evidence and may not consider any evidence that is not specifically cited in the parties’ briefs.
A party should not file a Motion and separate “Memorandum of Law.” The Motion, itself, should include the party’s argument and citation authority supporting the relief it seeks.
The Court will strike non-dispositive motions that do not include a Certificate of Conference. W.D. Tex. Civ. R. 7(g).
- Document
- Non-dispositive motion
Include
- •Certificate of conference
Complete diversity required for federal jurisdiction in diversity cases; removing party must demonstrate it.
Court's wording
Under 28 U.S.C. § 1332 there must be complete diversity between plaintiffs and defendants. Complete diversity requires that all persons on one side of the controversy be citizens of different states from all persons on the other side. The party asserting federal jurisdiction in a diversity action has the burden to demonstrate complete diversity. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Parties must make “clear, distinct, and precise affirmative jurisdictional allegations.” MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019).
For individuals, pleading residence is insufficient; the notice of removal must plead their citizenship. MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019).
For LLCs and partnerships, citizenship must be traced through all members/partners to establish diversity jurisdiction.
Court's wording
The citizenship of a limited-liability business organization is determined by the citizenship of its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). Similarly, the citizenship of a partnership is determined by the citizenship of all its partners. Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990); Corfield v. Dallas Glen Hills, L.P., 355 F.3d 853, 856 n.3 (5th Cir. 2003). “A party seeking to establish diversity jurisdiction must specifically allege the citizenship of every member of every LLC or partnership involved in a litigation.” Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 536 (5th Cir. 2017). When members or partners are themselves entities or associations, citizenship must be traced through however many layers of members/partners there are until arriving at the entity that is not a limited liability entity or partnership and identifying its citizenship status. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 397-98 (5th Cir. 2009).
Any motion filed in the state court before removal that still requires resolution in this Court must be re-filed as a new motion in this Court.
Pursuant to 28 U.S.C. § 1447(b) the removing party(ies) shall supplement the record with all state court pleadings and filings. The supplement shall include the docket sheet from the state court.
Pretrial objections to exhibits required; failure to raise at Pretrial Conference may waive objections at trial.
Court's wording
The Court requires pretrial objections to the authenticity and admissibility of exhibits. The Court will address all evidentiary objections at the Final Pretrial Conference. The Court strongly favors the admission of all exhibits at the Pretrial Conference. A party’s failure to address any evidentiary objection at the Pretrial Conference could be cause for waiver of this objection during trial.
Corporations are citizens of their state(s) of incorporation and principal place of business (nerve center test).
Court's wording
A corporation is a citizen of its state(s) of incorporation and of the state in which its principal place of business is located, as determined by the “nerve center” test. 28 U.S.C. § 1332(c)(1); Lincoln Property Co. v. Roche, 546 U.S. 81 (2005); Hertz Corp. v. Friend, 559 U.S. 77 (2010). The removing party must allege both a corporation’s state of incorporation and its principal place of business. MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 314 (5th Cir. 2019).
Failure to properly plead citizenship of all parties may result in remand without further notice.
Court's wording
If the case has been removed on the basis of diversity jurisdiction under 28 U.S.C. § 1332, the removing party has the burden to demonstrate there is complete diversity by properly pleading the citizenship of all parties as discussed previously. Failure to supplement the record with proper citizenship allegations may result in remand of this action by the Court without further notice.
If LLC/partnership members are unknown after diligent investigation, citizenship may be alleged on information and belief.
Court's wording
If the members of an LLC or partners of a partnership are unknown to the removing party even after a diligent investigation, the removing party may allege its citizenship on information and belief. Lincoln Ben. Life Co. v. AEI Life, LLC,
Request the expedited hearing in the motion.
Filing & Service rules
Service and Proof of Service Rules
Written objections to the Presentence Investigation Report should be sent to the Probation Officer.
Written objections should be sent to the Probation Officer.
Civil cases
Page 11
Exhibits and objections must be exchanged and filed after docket call, if not earlier, and before jury selection and trial.
After docket call, if not earlier, and before jury selection and trial.
Civil cases
Page 11
Courtesy Copy Requirements
A courtesy copy is required only when the Court requests one.
Only if requested by the Court.
Civil cases
Page 4 | Motions Practice
Sealing & Redaction Procedures
Sealing discouraged; redaction preferred; leave of court required for sealed filings.
The Court disfavors motions to maintain filings under seal, and the Court expects parties to draft such submissions in a manner that does not disclose confidential information. W.D. Tex. Civ. R. 5.2(b). Proper redaction is preferable to sealing a case or a particular filing. Even when filing a document under seal may be warranted, it is better for the sealed document to be an exhibit rather than the entire filing. If a party wishes to file a pleading, motion, or exhibit under seal, the party must first obtain leave of court by motion with citation to authority supporting the filing under seal. The item will be admitted under seal if the Court deems such filing to be necessary.
Civil cases
Page 2 | GENERAL
Pre-Motion Conference Requirements
At docket call, if the parties are not ready for trial, they must make an oral or written motion unless a written motion was previously filed.
Status of case: is the defendant ready for trial or will the defendant be entering a plea of guilty. If guilty plea, the defendant will be rearraigned at that time. If parties are not ready for trial, oral or written motion must be made at that time, unless written motion has been previously filed.
Civil cases
Page 11
Counsel must confer with opposing counsel before moving for a continuance or to expedite a hearing, and the conference should be reflected in the motion’s body and title; conferring on other motions is preferred but not mandatory.
Not necessarily, however it would be best for the Court. Counsel must confer with opposing counsel on motions for continuance or motions to expedite hearings. Same should be reflected in the body and title of the motion.
Civil cases
Summary judgment motions are disfavored in cases without jury trial rights and should be limited to purely legal issues.
Motions for summary judgment are highly disfavored in any case in which the Court will serve as the factfinder and in any case asserting a cause of action under the Federal Tort Claims Act in which parties do not have a right to a jury trial under 28 U. S. C. § 2402 and Carlson v. Green, 446 U.S. 14, 22 (1980). Consequently, the basis for any motion for summary judgment in these cases should be restricted to purely legal issues (e.g., whether a legal duty exists, the affirmative defense of statute of limitations, or failure to exhaust administrative remedies).
Civil cases
Page 3 | MOTIONS FOR SUMMARY JUDGMENT
A motion to suppress will be set for hearing at docket call unless the Court orders otherwise.
Upon defense filing a motion to suppress, the motion will set be for hearing at the time of docket call, unless otherwise ordered by the Court.
Civil cases
Page 11
The Court accepts briefing beyond the motion, response, and reply without leave, and may rule after the reply is filed.
Yes. No leave is required but the Court may rule any time after the reply is filed.
Civil cases
Page 13
Adjournment & Extension Requirements
File a motion to modify a scheduling-order deadline before the deadline expires.
A motion requesting the modifications should be filed prior to the expiration of the deadline(s) sought to be extended or modified.
Civil cases
Page 2 | General Pretrial Procedures
A motion to continue should be filed as early as possible and show good cause; the court will rule as soon as practicable.
A motion to continue should be filed at the earliest date possible and should show good cause for the continuance. The Court will rule as soon as practicable.
Civil cases
Page 6 | Hearing and Trial Procedures
Parties should promptly move for a continuance when its need becomes apparent, stating the reason, whether it is unopposed, and the time requested.
The parties should file a motion for continuance as soon as it becomes apparent a continuance is required. It must state the reason for the continuance, whether or not it is unopposed and the length of time required.
Civil cases
Page 14 | Hearing and Trial Procedures
No.
No.
Civil cases
Page 13
Chambers Communication Rules
The court may not be contacted by e-mail or fax.
No.
Civil cases
Page 1 | Contacting the Court
Law clerks may be contacted ex parte about procedural questions, but substantive issues may be discussed only by telephone conference with all parties.
Yes. Law Clerks may be contacted on an ex parte basis for all procedural questions and by telephone conference with all parties for substantive issues.
Civil cases
Page 1 | Contacting the Court
For emergencies, contact the Courtroom Deputy at the listed telephone number.
Contact Courtroom Deputy at (210) 472-6550, ext. 5005.
Civil cases
Page 1 | Contacting the Court
Notify the law clerk when a contested civil motion is resolved through settlement or otherwise.
Notify the law clerk of civil settlement/resolutions.
Civil cases
Page 2 | Contacting the Court
Do not contact the court about motion status; contact the docketing clerk instead.
No. Contact the docketing clerk.
Civil cases
Page 2 | Contacting the Court
Telephone conferences to resolve motions or other matters occur only at the Court’s direction.
Only at the Court’s direction.
Civil cases
Page 13
Notify the Courtroom Deputy in writing when an evidentiary sentencing hearing is required.
Notify the Courtroom Deputy by written communication.
Civil cases
Notify the Courtroom Deputy when a contested criminal motion has been resolved.
Notify the Courtroom Deputy.
Civil cases
Contact the Courtroom Deputy about scheduling matters at the listed telephone number.
Courtroom Deputy at (210) 472-6550, ext. 5005.
Civil cases
Page 1 | Contacting the Court
For an anticipated motion for a temporary restraining order or other expedited relief, counsel should, if possible, alert chambers and notify the intake clerk that the matter is immediate.
In addition to following the Federal Rules of Civil Procedure and Local Rules, if possible, counsel should alert chambers of the impending filing and notify the intake clerk of the immediacy of the matter.
Civil cases
Page 2 | Contacting the Court
Parties may bring their own equipment; Court security determines restrictions, and the Courtroom Deputy should be contacted about restrictions and arrangements.
Yes, parties may bring their own equipment. Court security must determine if any restrictions. Contact Courtroom Deputy regarding restrictions and arrangements.
Civil cases
Page 4 | Facilities and Technology
Contact the Court’s Judicial Assistant to schedule time in the courtroom to become familiar with its layout and technology.
Yes. Contact the Court’s Judicial Assistant.
Civil cases
Page 4 | Facilities and Technology
Contact the Courtroom Deputy to arrange use of available courtroom equipment.
Contact the Courtroom Deputy at (210) 472-6550, ext. 5005.
Civil cases
Page 4 | Facilities and Technology
For motion-status inquiries, contact the docketing clerk, or the Courtroom Deputy if the clerk is unavailable.
Contact the docketing clerk. If not available, contact the Courtroom Deputy.
Civil cases
When possible, counsel should alert chambers to an impending expedited-relief motion and notify the intake clerk that the matter is urgent.
In addition to following the Local Rules, if possible, counsel should alert chambers of the impending filing and notify the intake clerk of the immediacy of the matter.
Civil cases