VIII. PROVISIONAL AND FINAL REMEDIES

65.1 Draft of Temporary Restraining Order or Preliminary Injunction

Any motion for a temporary restraining order or preliminary injunction shall be accompanied by a proposed order, consistent with the requirements of Fed. R. Civ. P. 65, for the court to consider.

65.1.1 Sureties

(a) Members of Bar; Court Officers

No member of the bar, clerk, marshal, or other officer or employee of the court may act as surety or guarantor of any bond or undertaking in any proceeding in this court.  An attorney who wishes to act as surety in an individual capacity as a relative or close friend of a party to a proceeding in this court must first obtain permission from the court.

(b) Form of Bond

Surety bonds shall be signed and acknowledged by the party and  surety or sureties.  They shall refer to the statute, rule, or court order under which they are given, state the conditions of the obligation, and contain a provision expressly subjecting them to all applicable federal statutes and rules.

(c) Security

Except as otherwise provided by law or by order of the court, a bond or similar undertaking must be secured by the:

(1) deposit of cash or obligations of the United States of a type acceptable as collateral to the Treasury Department of the United States under 31 C.F.R. § 225 in the amount of the bond; or

(2) guaranty of a company or corporation holding a certificate of authority from the Secretary of the Treasury Department of the United States pursuant to 31 U.S.C. § 9304, et. seq.; or

(3) guaranty of an individual resident of this district who owns unencumbered real or personal property within the district worth the amount of the bond in excess of legal obligations and exemptions.  Property held jointly is acceptable provided all joint tenants execute the bond.

(d) Deposits of Cash or Obligations of the United States

Such deposits shall be accompanied by a written statement, duly acknowledged, that the signer is owner thereof, that the same is subject to the conditions of the bond, and that the clerk may collect or sell the obligations and apply the proceeds or the cash deposited in case of default as provided in the bond.

(e) Corporate Surety

Before any corporate surety bond or undertaking is accepted by the clerk's office, the corporate surety must have on file with the clerk's office a duly authenticated copy of a power of attorney appointing the agent executing the bond or undertaking.

(f) Personal Surety Secured by Real Estate

(1) Procedure for Posting Real Estate Bond

An individual posting a real estate bond shall execute an affidavit of surety that shall provide the following information:

(A) the individual's name, occupation, and residential and business addresses; and

(B) a statement that the affiant will not encumber or dispose of the property while the bond remains in effect.

The individual shall attach to the affidavit:

(A) a statement as to assessed value from the town or city clerk's office wherein the property is located or, if not available, an appraisal by a licensed appraiser; and

(B) a title report from a member of the New Hampshire bar listing all liens and mortgages on the property, including all but the current year's real estate taxes, or evidence that the title has been insured by a title insurance company licensed by the State of New Hampshire.

(2) Execution of Bond and Deposit of Deed

All parties to the deed and the real estate bond shall execute the bond and take the oath.  A certified copy of the deed for each tract subject to the bond shall be deposited with the clerk.

When real estate is pledged as a condition of bail in criminal cases, the United States Attorney shall review all papers submitted and shall file a position statement with the court regarding the proposed attachment.

(3) Attachment

The party on whose behalf the deed is pledged shall:

(A) promptly file a writ of attachment, signed by the court, against the property in the Office of the Registrar of Deeds of the county in which the property is located; and

(B) file with the court the original paid receipt from the Registrar's Office indicating the book and page number where the attachment was recorded.

(g) Approval of Bond

Except as otherwise provided by law, the clerk may accept a bond in the amount fixed by the court or by statute or rule and secured in the manner provided by subsection (c)(1) or (2) of this rule.  All other bonds must be approved by the court.

A bond or undertaking presented to the clerk for acceptance shall be accompanied by a certificate by the attorney for the presenting party in substantially the following form:

This bond (or undertaking) has been examined pursuant to Local Rule 65.1.1 and is recommended for approval.  It (is) (is not) required by law to be approved by a judge.

[DATE]                                                               [ATTORNEY]

(h) Service

The party on whose behalf a bond is given shall promptly, after approval or filing of the bond, serve a copy of it on all other parties to the proceeding, but such service need not be made on the United States in a criminal case.

(i) Modification of Bond

The court, on its own initiative or on motion of a party, may after the amount or terms of a bond or similar undertaking at any time as justice requires.

(j) Further Security

The court, on its own initiative or on motion of a party, may order a party to furnish further or different security or require personal sureties to furnish further justification.

(k) Discharge

Upon satisfaction of the conditions of the bond or similar undertaking, the monies or obligations shall be returned to the owner only on an order of the court.

History

(§ (c)(2) amended 1/1/99)

67.1 Security for Costs

(a) In General

Except as otherwise provided by statute or court rule, parties, resident and nonresident, shall not be required as a matter of course to give security for costs in this court.  In any civil proceeding, the court, either on its own initiative or on the motion of a party, may order any party except the United States to file an original bond for costs or additional security for costs in such an amount and so conditioned as it may designate.  The motion of a party shall state in sufficient detail the circumstances warranting the requested security for costs.  The court may at any time modify or rescind such an order or direct that additional or other security be furnished.

(b) Failure to Furnish Security

If a party fails to comply with an order to furnish security, the court may impose sanctions or take any other action as it deems just and necessary.

(c) Exemptions

This rule shall not apply to any party proceeding in forma pauperis or as a seaman under 28 U.S.C. § 1916.

67.2 Deposit of Registry Funds Into Interest-Bearing Account

(a) Receipt of Funds.

(1) Unless an applicable statute requires the deposit of funds without leave of court, no funds governed by Fed. R. Civ. P. 67 shall be tendered to the court or the clerk's office for deposit into the court's registry absent court order signed by a judge.

(2) Unless otherwise provided for elsewhere herein, all funds received by the court or the clerk's office for any case pending or in the process of adjudication shall be deposited with the Treasurer of the United States, in the name and to the credit of this court, pursuant to 28 U.S.C. § 2041.  Such deposits shall be made through depositories designated by the Treasury to accept such deposits on its behalf.

(3) Except as provided in subsection (b)(2) below, the party making the deposit or transferring funds to the court's registry shall electronically serve the order permitting the deposit or transfer on the clerk of court or, in the clerk's absence, upon the chief deputy clerk or financial administrator.

(b) Investment of Registry Funds

(1) Court Registry Investment System

(A) Unless otherwise ordered, the Court Registry Investment System (CRIS), administered through the Administrative Office of the United States Courts, shall be the investment mechanism authorized.

(B) Interpleader funds deposited under 28 U.S.C. § 1335 meet the IRS definition of a Disputed Ownership Fund (DOF), a taxable entity that requires tax administration.  Unless otherwise ordered by the court, interpleader funds shall be deposited in the DOF established within the CRIS and administered by the Administrative Office of the United States Courts, which shall be responsible for meeting all DOF tax administration requirements.

(C)  The Director of Administrative Office of the United States Courts is designated as custodian for all CRIS funds.  The Director or the Director’s designee shall perform the duties of custodian.  Funds held in the CRIS remain subject to the control and jurisdiction of the Court.

(D)  Under CRIS, monies deposited in each case will be “pooled” together with those on deposit with the Treasury to the credit of other courts in CRIS and used to purchase Government Account Series securities through the Bureau of Public Debt, which will be held at the Treasury in an account in the name and to the credit of the Director of Administrative Office of the United States Courts, hereby designated custodian for CRIS. The pooled funds will be invested in accordance with the principles of the CRIS Investment Policy as approved by the Registry Monitoring Group. 

          (i) For non-DOF case funds, an account will be established in the CRIS Liquidity Fund titled in the name of the case giving rise to the deposit invested in the fund. Income generated from fund investments will be distributed to each case based on the ratio each account’s principal and earnings has to the aggregate principal and income total in the fund after the CRIS fee has been applied.

          (ii) For DOF case funds, an account shall be established in the CRIS Disputed Ownership Fund, titled in the name of the case giving rise to the deposit invested in the fund. Income generated from fund investments will be distributed to each case based on the ratio each account's principal and earnings has to the aggregate principal and income after the DOF fee has been applied and tax withholdings have been deducted from the fund.  On appointment of an administrator authorized to incurexpenses on behalf of the DOF in a case, the case DOF funds should be transferred to the CRIS Liquidity Fund or another investment account as directed by court order.

(E) Reports showing the interest earned and the principal amounts contributed in each case will be available through the FedInvest/CMS application and will be made available to litigants and/or their counsel. 

(2) Other Investments and Instruments

Upon motion the court in its discretion may approve an investment mechanism other than CRIS.  Prior to filing the motion, the party requesting approval of an alternate investment mechanism shall first personally deliver the proposed order to the clerk, chief deputy or financial administrator, who shall review the proposed order to confirm it fulfills investment requirements.

A motion to approve an alternate investment mechanism must, at a minimum, address the following:

(A) the amount to be invested;

(B) a designation of the type of account or instrument in which the funds shall be invested;

(C) the name of the depository, which must be approved by the Treasurer of the United States as a depository in which funds may be held;

(D) the form of additional collateral to cover the entire amount of invested funds without regard to FDIC insurance;

(E) a direction to the clerk to deduct from the income earned on the investment a fee not exceeding that authorized by the Judicial Conference of the United States and set by the Director of the Administrative Office of the United States Courts as published in the Federal Register; and

(F) such other appropriate information that may be deemed applicable under the facts and circumstances of the particular case.

Upon court order to deposit and invest registry funds locally, the clerk shall serve as custodian of the account or financial instrument and shall keep such account, certificate of deposit, or financial instrument in a secure and safe place subject to further order of the court.

(c) Investment Fees and Taxes

(1)  The custodian is authorized and directed to deduct the CRIS fee of an annualized 10 basis points on assets on deposit for all CRIS funds, excluding the case funds held in the DOF, for the management of investments in the CRIS.  According to the Court’s Miscellaneous Fee Schedule, the CRIS fee is assessed from interest earnings to the pool before a pro rata distribution of earnings is made to court cases.

(2)  The custodian is authorized and directed to deduct the DOF fee of an annualized 20 basis points on assets on deposit in the DOF for management of investments and tax administration. According to the Court’s Miscellaneous Fee Schedule, the DOF fee is assessed from interest earnings to the pool before a pro rata distribution of earnings is made to court cases.  The custodian is further authorized and directed by this rule to withhold and pay federal taxes due on behalf of the DOF.

(3)   In cases in which funds are ultimately disbursed to the United States or to agencies or officials thereof, the clerk shall provide to those agencies or officials any relief from the CRIS fees approved by the Director of the Administrative Office on application filed by the United States Attorney or any other government counsel

(d) Cash Bail

If cash bail in an amount in excess of $10,000 is deposited with the court, it may be placed in an interest-bearing account upon motion of the submitting party.  The deposit shall comply in all respects with the requirements of this rule except that there shall be no administration fee assessed.

History

(§§ (a)(2)-(4), (b)(1)-(2) and (c)(1)-(3) amended 12/1/11; (c) amended  12/1/16; amended generally 4/1/17)

67.3 Disbursal of Registry Funds

No funds may be paid out of the court's registry except by order of the court. If a judgment has been issued or is to be issued, no funds may be disbursed until fourteen (14) days after the entry of judgment, except as provided in Fed. R. Civ. P. 62 or by agreement of the parties. The authorized custodian shall disburse all registry principal and income, if applicable, less the registry fee assessment and/or taxes, pursuant to the court’s order.  Any such order shall distinctly set forth the funds in question and name the payee.  Should the named payee be other than the depositor of the funds, that fact shall be reflected in the order. If the funds have been deposited in an interest-bearing account or an interest-bearing instrument, the party shall provide, on a separate filing attached to the motion seeking withdrawal of the funds, the social security number or employer identification number of the ultimate recipient of the funds.  The clerk shall forward this separate filing directly to the institution holding the money.

(Amended 12/1/09; amended 12/1/15; amended 12/1/17)

67.4 Form of Payment Accepted

Fees, fines, assessments, money deposited into court pursuant to Fed. R. Civ. P. 67, or any other charge payable to the clerk shall be in cash, cashier's check, or money order.  Payment by credit card is also accepted, but there may be restrictions on certain types of payments.  After consulting with the clerk’s financial administrator, and in accordance with the clerk’s internal policies, payment may also be made by electronic funds transfer received through the Department of Treasury’s Fedwire Deposit System.  The clerk in his or her discretion may allow payment by other means in the following situations:

1. corporation or partnership checks may be accepted as payment for filing fee or deposits pursuant to Fed. R. Civ. P. 67; and

2. personal checks may be accepted as payment for fees for admission to the bar, from attorneys who are sole practitioners for any purpose, and for fines personally assessed against parties.

(Introductory paragraph amended 1/1/00, 1/1/03, 6/1/05)

67.5 Qualified Settlement Funds

(a) Definition

A registry account may be a designated or qualified settlement fund only if: 

(1) there has been a settlement agreement in the case;

(2) the court has entered an order establishing or approving a deposit into the registry as a settlement fund; and

(3) the liability resolved by the settlement agreement is of a kind described in 26 U.S.C. § 468B or 26 C.F.R. § 1.468B-1(c). 

The depositing party shall elect to have the funds treated as a designated or qualified settlement fund and must identify any such deposit made with the court.

(b) Procedure for Establishment of Fund

When the court establishes or approves a designated or qualified settlement fund that will be held in the registry, the court will also designate or approve a person outside the court as the administrator responsible for obtaining the employer identification number for the fund, filing all fiduciary tax returns, and paying any tax.  The court will either approve the person that the settlement agreement names as administrator or designate the party that deposited the funds into court.

(c) Interest Income

The depository institution shall report all interest income on a designated or qualified settlement fund for the current year, using the fund's own employer identification number.  This includes any interest income assessed by the court as a registry fund fee.  The tax identification numbers of the parties and the court shall not be used with respect to a designated or qualified settlement fund.

(d) Withdrawal

As with any disbursement from a registry account, a court order is required for any withdrawal of funds from a registry account to pay or withhold tax pursuant to 28 U.S.C. § 2042.

(e) Assistance to Administrator

The court will make available to the administrator any pertinent information needed for fulfillment of fiduciary duties.

69.1 Writs of Execution; Related Proceedings

Every officer to whom a writ of execution is delivered shall make return thereon to the clerk's office unless the court otherwise directs.  When a sale is made under any execution and no particular time for return is prescribed by order of the court or provision of law, the return shall be made within thirty (30) days after said sale.  If no particular time is prescribed by order or law and no sale is made under the execution, return shall be made immediately after such execution occurs or, if not executed, within sixty (60) days after the writ of execution is issued.

An affidavit containing the following information shall be submitted with all requests for writs of execution:

1. a statement outlining any efforts made to recover judgment;

2. a statement certifying that a demand has been made;

3. a statement of what has been paid and what is owing;

4. an explanation of how the principal amount has been calculated if it differs from the amount awarded in the judgment; and

5. a statement that the amount on the writ is the amount due.      

(First paragraph amended 1/1/00, 12/1/09)