Presides in Phoenix Courtroom 602
A. Common Errors Regarding Compliance with Local Rules and General Orders
Particular attention should be given to General Order 82, regarding first day orders and the following Local Bankruptcy Rules: Local Rule 1073-1(d) and (e) requiring motions for joint administration to be filed in the lower-numbered case; 4001-1 governing motions for relief from stay; 6004-1 governing asset sales; 9004-1(e) requiring hearing dates and times to be included in captions when known; 9013-1(d) requiring a form of order to accompany a motion that may be granted ex parte; 9013-1(e) requiring certification of personal attempts to resolve discovery disputes; 9013-1(h) governing procedures for obtaining accelerated hearings; and 9013-1(j) requiring a notice of hearing to accompany any motion that requires a hearing. Copies of all general orders and local rules can be downloaded from the Arizona Bankruptcy Court web site.
B. Using Notice with Bar Dates for Responses
In addition to the bar date procedures established by the Local Rules, unless the court orders otherwise, the moving party may use a bar date notice for all:
- approvals of compromises and settlements
- objections to exemptions claimed by debtor
- notice of claims bar date
- applications for an award of professional fees
- any matter which counsel anticipates will not draw objections .
The party using the bar date notice procedure must give detailed notice of the requested relief and clearly state the requirement to respond within the time allowed. Movant must serve all parties entitled to notice and file a service certificate. Upon expiration of the time stated in the Bankruptcy Rules or Local Rules, and an additional three (3) days for mailing, provided there are no objections filed, movant may file a certificate of service of no objections and upload an order granting the relief requested. The uploaded order should conform to the original relief requested.
If an objection is filed, the movant is responsible for preparing and sending a copy of the "Notice of Electronic Filing" of the motion/objection to firstname.lastname@example.org. Upon receiving a hearing date, movant shall give notice to all interested parties of the hearing and file a certificate of service. It is not necessary to forward a copy of the actual "Notice of Hearing" to the court.
In the alternative, particularly if an objection is anticipated, a hearing date may be obtained for any motion or application by preparing and sending a copy of "Notice of Electronic Filing" to email@example.com.
C. Filing Pleadings
Judge Nielsen does not accept pleadings sent directly to chambers via fax, personal delivery or e-mail. All pleadings must be electronically filed before the time of the hearing.
D. Continuances and Vacating Calendared Hearings
Any request to continue or vacate a hearing requires a motion and an uploaded order. The proposed order should include the hearing date and time in the caption.
A courtesy call to courtroom deputy Rhonda Vaughan, (602) 682-4228, advising of the request to continue or vacate and indicating that the appropriate papers are forthcoming is greatly appreciated. An uploaded order is required to continue or vacate a hearing.
E. Exhibit Procedures
Effective March 1, 2013 - MANDATORY USE OF ELECTRONIC EXHIBITS IN THE COURTROOM OF JUDGE NIELSEN. All exhibits presented at trials or evidentiary hearings to last more than two hours are to be presented electronically. This does not apply to pro se parties. This applies to both contested and adversary proceedings. The parties may elect to use electronic evidence for hearings and trial lasting two hours or less.
Electronic exhibits may be presented in the following formats: CD-Rom, Audiotape, Videotape, Electronically filed documents, Power Point, or other exhibit programs, such as Sanctions or Trial Director. Please contact Jennifer Lowry if you have any questions about the format. Counsel and/or parties who present electronic exhibits, are to contact Ms. Lowry at 602-682-4168 or firstname.lastname@example.org two (2) weeks prior to the trial to schedule a time for testing.
2. At the time of the trial counsel shall provide the Courtroom Clerk with a disc or thumbdrive containing the exhibits that will become part of the official record. Counsel are encouraged to confer on presenting one thumbdrive or disc that contains both parties’ exhibits. Plaintiff's or movant’s exhibits should be identified by numbers; Defendant's or respondents’exhibits should be identified by alphabet. Please provide the Courtroom Deputy with an Exhibit List of all exhibits to be submitted. Exhibit list may be emailed to Ms. Lowry at email@example.com.
3. Electronic exhibits in the custody of the Clerk and maintained as the official court record will be the exhibits that are presented to the Court at the trial or evidentiary hearing, unless otherwise ordered. The Clerk of Court shall maintain control of the electronic exhibits until the matter is finally concluded and the time for appeal has run, unless otherwise ordered released. The exhibits shall be stored in the same electronic format in which they were submitted.
4. The parties are responsible for presentation of the evidence at trial, through operation of any software, document camera or video device utilized. This may be done by a staff member of the attorney or party. The Courtroom Staff are not responsible for actual presentation of evidence. Accordingly, prior contact with the Court two weeks prior to trial is vital to ensure the staff member is familiar with the court equipment.
F. Docketing Calls
Except in the case of an emergency, inquiries regarding the entry of pleadings and orders on the docket should be directed to the Bankruptcy Court Clerk's Office. In an emergency, parties may inquire of chambers staff whether an order has been signed or entered on the docket.
Chambers staff will not give parties legal advice or provide status reports concerning items before the court. If a matter has been under advisement for more than 60 days, counsel should send a letter of inquiry directly to the judge, with a copy to all parties. See Local Bankruptcy Rule 9010-1(d).
G. Telephonic Appearances
1. Parties may request to appear telephonically by sending an email to Rhonda_Vaughan@azb.uscourts.gov 24 hours prior to the scheduled hearing, preferably at the time the moving papers are filed. Sworn testimony by telephone for evidentiary hearings is disfavored.
The following information will be asked:
- Court date and time
- Case name and number
- Name and phone number of the party appearing, and who they represent
Telephonic witness testimony is discouraged but will be considered by motion filed at least ten (10) days in advance of the hearing and served on all other parties together with a notice that any objection be filed at least five (5) days prior to the scheduled hearing.
Individuals making use of the conference line are cautioned that they do so at their own risk. Hearings generally will not be rescheduled due to missed connections.
Please note that you are dialing into a direct dial conference line which is immediately live in the courtroom, and therefore does not ring or play music. The caller may only hear "airspace" until such time as the courtroom deputy opens the line. Additionally, although the parties may not be able to hear the court while waiting for their case to be called, the court can hear the parties. After your call is connected to the courtroom, the Judge will call the case, request appearances, and direct the manner in which the hearing proceeds. Each time you speak, you should identify yourself for the record. The court’s teleconferencing system allows more than one speaker to be heard, so the Judge can interrupt a speaker to ask a question or redirect the discussion. When the Judge informs the participants that the hearing is completed, you may disconnect and the next case will be called.
2. In the event an email request cannot be sent, please call Jennifer Lowry at 602-682-4168 or Denine Downs at 602-682-4224.
H. Obtaining a Compact Disc Recording or Transcript of a Hearing
- A party may obtain a transcript or compact disc recording of a hearing by contacting the Electronic court reporting ("ECR") department at (602) 682-4200. The current cost for a compact disc recording is $30 per disc.
The cost of a transcript is determined by the number of pages and whether the party requests expedited delivery. Upon request, ECR staff can provide an estimate of transcript costs.
I. Obtaining Hearing Dates for Electronic Case Filing ("ECF") Matters
Upon completion of filing a motion or application, counsel may obtain a hearing date through firstname.lastname@example.org and include the following: A copy of the Notice of Electronic Filing
Counsel will then be provided with a hearing date and time for noticing by return e-mail. Once completed, a copy of the "Notice of Electronic Filing" of the motion must be emailed to email@example.com
Complete instructions regarding ECF procedures can be downloaded from the Bankruptcy Court web site.
PLEASE ALLOW FORTY-EIGHT HOURS FOR SCHEDULING REQUESTS AND RESPONSES TO EMAIL INQUIRIES.
J. General Trial Procedures
The Court will set a specific time for the exchange of exhibits and identification of witnesses for an evidentiary hearing. In the absence of an order to the contrary, all witnesses which a party proposes to call must be identified and copies of all exhibits that a party proposes to admit into evidence must be exchanged no later than two weeks prior to the hearing. If a witness will be asked to express an expert opinion, the witness must be identified as an expert and a report submitted at the time exhibits are exchanged. The report need not be elaborate, but must set forth the matters on which the opinion will be offered, the nature of the opinion and the materials the expert relied upon in reaching the opinion. Failure to follow these procedures may lead to exclusion of the witness or the exhibit. The parties may agree to a different disclosure schedule or procedure. Such agreement will be enforced against a noncomplying party only if the agreement complies with Local Rule 9071-1. Stipulated pretrial orders will be required for complex litigation.
K. Motions for Relief from Stay
After an objection or response has been filed to a Motion for Relief from Stay, the moving party must promptly e-mail Jennifer Lowry with the Notice of Electronic Filing of the Motion attached to firstname.lastname@example.org to obtain a date for a Preliminary Hearing. Failure to promptly request a hearing will be deemed a waiver of the priority hearing provisions of 11 U.S.C. Section 362(e)(2).
A hearing date and time will be provided by return e-mail.
Prepare and file a notice of Preliminary Hearing and email a copy of the Notice of Electronic Filing to: email@example.com
Serve the notice of hearing to the appropriate parties and file the certificate of service via ECF.
L. Use of Declarations and Affidavits
Unless otherwise ordered, the Court will not accept affidavits or declarations as trial evidence over the objection of an opposing party. Prior to the trial, the parties shall stipulate which, if any, declarations or affidavits may be received into evidence without qualification, which may be received in evidence, provided the witness is available at the hearing for cross examination and which witnesses must testify on direct examination. Notwithstanding the parties' agreement, the Court may require any witness' testimony to be provided by direct examination.
M. ECF Orders
When lodging a form of order that counsel expect the Court may modify, please e-mail an extra copy in a word processing format, such as Word or WordPerfect, to the judicial assistant at Denine_Downs@azb.uscourts.gov.
N. First Day Motions in Chapter 11 Cases
In addition to compliance with General Order 82, it would be appreciated if one paper copy of first day motions and orders, including all exhibits, could be provided to chambers. When first day motions are numerous, chamber's copy should be provided in tabbed three-ring binders with a table of contents.