December 12, 2016 Practice Points

Practical Guidance for You and the Updated Federal Rules

By Patrick Reilly and Eldin Hasic

On December 1, the annual updates to the Federal Rules of Civil Procedure went into effect. The changes are relatively minor this year compared to last year, which included a significant narrowing of the scope of discovery. Nonetheless, there is a timing change this year regarding electronically served discovery that all litigators will need to keep in mind: the three-day “mail rule” extension no longer applies to electronically served discovery. Two other amendments regarding service of internationally based corporate defendants and venue in maritime law actions have narrower practice area application. There were no amendments to the Federal Rules of Evidence this year so civil litigators need not worry about that for now.
The amending language for the three changes to the Federal Civil Rules is below. Deleted language is stricken, while new language is underlined. A side-by-side comparison of the old and new rule language is available in an earlier version of this article that our firm published. See http://www.faegrebd.com/2016-amendments-to-the-federal-rules-of-civil-procedure-take.

Rule 4 Summons
(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).

This change removes a possible ambiguity regarding international service on a corporation, partnership, or other unincorporated association. As with service on an individual in a foreign country (Rule 4(f)) and a foreign government (Rule 4(j)(1)), the rule now makes clear that international service on a foreign entity (Rule 4(h)(2)) is also exempt from the typical 120-day window for effectuating service under Rule 4. While unlikely to affect most lawyers’ day-to-day practice, the clarification will likely be appreciated by litigators who find themselves having to serve foreign corporations.

Rule 6 Computing and Extending Time; Time for Motion Papers
(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after servicebeing served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), (E), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

This change removes electronic service (Rule 5(b)(2)(E)) from the means of service that get the benefit of the 3-day “mail rule” extension. The drafters made the change because electronic service is instantaneous, increasingly commonplace, and concerns over its reliability have dissipated over the years as technology has advanced. The big concern in 2006 when electronic service was first approved were expected problems with sending and receiving large attachments, which are much easier to handle nowadays. Consent is still required to make electronic service valid, so litigators should keep in mind that responses will be due in 30, not 33, days when deciding whether to consent to service by electronic means. Per Rule 5(b)(2)(E), a party must consent in writing to receive electronic service of discovery and registration for electronic court filing does not substitute as automatic consent for electronic service of discovery.

Interestingly, the comments for this rule change note that “[e]lectronic service after business hours, or just before or during a weekend or holiday, may result in a practical reduction in the time available to respond.” The comments recognize that in such situations “[e]xtensions of time may be warranted to prevent prejudice.” A party faced with accusations of serving discovery late by a day or two could possibly find some solace in this language from the comments when asking for relief from the court.

Rule 82. Jurisdiction and Venue Unaffected
These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. An admiralty or maritime claim under Rule 9(h) is governed by 28 U.S.C. § 1390 not a civil action for purposes of 28 U.S.C. §§ 1391-1392.

This is a technical change reflecting the enactment of 28 U.S.C. § 1390 and the repeal of 28 U.S.C. § 1392 (local actions). The statute exempts maritime law actions from the typical venue rules under the Federal Rules.

Patrick Reilly and Eldin Hasic are associates with Faegre Baker Daniels in Indianapolis and Fort Wayne, Indiana, respectively.


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