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March 17, 2017 feature

A Practitioner’s Guide to the 2016 Federal Rule Amendments

New rules reflect practical realities of litigation

By Lauren M. Gregory

A new round of amendments to the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Appellate Procedure (FRAP) are now in effect, including an elimination of the familiar "mailbox rule" for electronic service, a clarification on time limits to appeal, and controversial reductions in length limits for appellate filings.

A new round of amendments to the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Appellate Procedure (FRAP) are now in effect, including an elimination of the familiar "mailbox rule" for electronic service, a clarification on time limits to appeal, and controversial reductions in length limits for appellate filings.

ABA Section of Litigation leaders say the amendments recognize realities in modern practice and are designed to help cases move along more expeditiously in federal court. However, there may be very little perceptible change in day-to-day practice.

Changes to Service Rules

In 2015, the time frame under which a federal complaint must be served, as set forth in FRCP 4(m), was reduced from 120 days to 90 days after filing. If a complaint is not served within that window, the rule states that "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."

The December 2016 amendments clarify that the 90-day rule does not apply to service on corporations, partnerships, or associations located abroad.

"There was a recognition that service in a foreign country tends to take longer, especially in light of the Hague Convention," explains Robert J. Will, St. Louis, MO, cochair of the Section of Litigation's Pretrial Practice & Discovery Committee. "The [Advisory Committee on Civil Rules] wanted to adopt language to make it clear that those situations would fall outside the scope of this rule."

Meanwhile, under amendments to both FRCP 6(d) and FRAP 26(c), parties who are served with an interlocutory filing electronically are no longer allowed to add three days to their response deadlines under the so-called "mailbox rule."

There were two reasons for this change, Will says: the obvious advances in technology since the rule was implemented in 2001, and simplification of deadline calculations. According to the committee's notes on the Rule 6 amendment, concerns over delay in transmission and that "incompatible systems might make it difficult or impossible to open attachments" have been "substantially alleviated." Meanwhile, the new Rule 6 goes hand-in-hand with the adoption of 7-, 14-, 21-, and 28-day response periods to allow "day-of-the-week" counting. "Adding three days at the end complicated the counting, and increased the occasions for further complication by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday," the Committee stated.

Steven Finell, cochair of the Appellate Rules and Statutes Subcommittee of the Section's Appellate Practice Committee, is pleased with the change. "Frankly, there was never really a reason for that rule," he observes.

Clarification on Time to Appeal

The Rules Committee has resolved a circuit split over the meaning of "timely" in former FRAP 4(a)(4), which provided that "[i]f a party timely files in the district court" certain post-judgment motions, including a motion for judgment as a matter of law under FRCP 50(b), a motion to amend the court's findings of fact under FRCP 52(b), or a motion for a new trial or to amend a judgment under FRCP 59—all traditional tolling motions—"the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion."

Although Rules 50, 52, and 59 prescribe deadlines of 28 days after entry of judgment, "district courts often, albeit erroneously, enter orders that purport to permit such a motion to be filed later than the 28-day limit," Finell explains. "Multiple times, a question has arisen concerning whether a motion made within the time period prescribed by a district court's order, but beyond the civil rules' limit, is 'timely.'"

The amendment adopts the approach taken by the U.S. Courts of Appeal for the Second, Third, Seventh, Ninth, and Eleventh Circuits, which have concluded that a tolling motion must be filed within the time period set forth in the rules in order to effectively extend the time to file a notice of appeal. It expressly rejects the U.S. Court of Appeals for the Sixth Circuit's approach in National Ecological Foundation v. Alexander, which held that because the district court had granted an unopposed motion to extend time to file a Rule 59(e) motion and the movant filed within the period contemplated by the court order, the time for appeal had been tolled, notwithstanding the fact that the filing was outside the deadline defined in the rules.

Reduction in Limits for Appellate Filings

The new rules reduce word limits for several types of appellate filings fairly significantly, an amendment Finell calls "the most controversial of the rule changes" in 2016. "Some appellate specialists actually welcome the change, because they think that will give them an advantage, but that's the minority view," he says. "The overwhelming majority opposed the reduction."

Parties must include certificates of compliance with the following word limitations pursuant to FRAP 32(g):

  • 5,200 words for a petition or opposition to notice of appeal. FRAP 5(c).
  • 7,800 words for petitions for or opposing writs of mandamus, writs of prohibition, and other extraordinary writs. FRAP 21(d).
  • 5,200 words for motions and motion responses. FRAP 27(d).
  • 2,600 words for replies to motions. FRAP 27(d).
  • 13,000 words for principal briefs. FRAP 32(a).
  • 6,500 words for reply briefs. FRAP 32(a).
  • 15,300 words for appellee's principal and response brief on cross-appeal. FRAP 28.1(e).
  • 3,900 words for petition for hearing en banc or rehearing en banc. FRAP 35(b).
  • 3,900 words for petition for panel rehearing. FRAP 40(b).
  • 6,500 words for amicus briefs. FRAP 29(a).
  • 2,600 words for amicus filings in connection with rehearing petitions. FRAP 29(b).

Though the rules still contemplate page limits for handwritten and typewritten filings, the committee has used word limits for briefs composed on computers since 1998 in order to avoid discrepancies over adjustments to sizing and spacing that could allow some parties to submit denser briefs, Finell explains.

The new limit on main briefs cuts 1,000 words and reply briefs by 500 words, a reduction of approximately 7 percent, according to Finell. The committee notes indicate the reduction is based on a prior miscalculation of the conversion rate for number of words per page. However, Finell believes the change is motivated more by judges' desire to better manage their ballooning dockets.

"They are really suffering under the weight of appellate filings," Finell says. "In addition to party files, amicus filings are way up. The number that judges have to read adds to their burden significantly."

However, the committee has cautioned courts that certain cases will require more briefing. It modified Rule 32(e) to expressly authorize courts to issue a local rule or an isolated order in a particular case to increase length limits, explaining in its amendment notes that it "expects that courts will accommodate these situations by granting leave to exceed the type-volume limitations as appropriate."

Changes Benefiting Inmates

Amendments to FRAP 4(c), FRAP 25(a)(2)(C), and FRAP Form 7 have clarified the rules governing proof of timeliness of filings for institutional inmates. Formerly, the rules were largely silent on these matters, according to Emily C. Harlan, Washington, DC, cochair of the Section's Criminal Litigation Committee.

"There was little practical guidance for inmates concerning the form and content of declarations [of timely filing]," Harlan observes. "The lack of clarity led courts to decide these issues differently and, in some cases, to dismiss inmates' filings as untimely."

The new rules explicitly state that a court can exercise its discretion to permit an inmate to file a declaration of timely filing after the fact and permit courts to accept other evidence of timely filing, such as a postmark or date stamp, in lieu of a declaration.

"This needed clarity eliminates some of the hurdles that inmates, many of whom are pro se, have faced in making filings with the court," Harlan concludes.

Long-Term Impact

The recent changes "have resulted in a fairly significant refocusing on the practical and on the realistic," Will maintains. "I think we are seeing in the implementation in various courts that it is going smoothly and most judges are very much embracing the idea of this being a more efficient, practical, expeditious way to help cases move along."

Finell is skeptical that tightening length requirements for appellate filings will actually help streamline litigation, however. "It will reduce the number of pages judges will have to read, but it is not really going to be enough to persuade lawyers what is and is not important to include in a brief," he says. "The answer might be more training for lawyers on how to write more concisely."


Lauren M. Gregory is an associate editor for Litigation News.

Keywords: 2016 federal rule amendments, appellate filing, FRCP, FRAP


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