On December 1, 2016, 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 regarding electronically served discovery that litigators will need to keep in mind: the three-day “mail rule” extension no longer applies to electronically served discovery.
This year’s changes to the Federal Rules are summarized in the table below. The new language is underlined on the right of the table.
| (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) or 4(j)(1). |
(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). |
| Takeaway: This change removes a possible ambiguity regarding international service on a corporation, partnership or other unincorporated association. As with service on a foreign government or a foreign individual, the rule now makes clear that international service on an entity is exempt from the typical 120-day window for effectuating service under Rule 4 due to delays that occur when serving a defendant abroad. 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. |
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Rule 6. Computing and Extending Time; Time for Motion Papers
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| (d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D) , (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a). |
(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a). |
| Takeaway: 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. 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. Importantly, 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 failing to respond to discovery on time could possibly find some solace in this language from the comments when asking for relief from the court. |
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Rule 82. Jurisdiction and Venue Unaffected
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| 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 not a civil action for purposes of 28 U.S.C. §§ 1391-1392. |
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. |
| Takeaway: This is a technical change reflecting the enactment of 28 U.S.C. § 1390 and the repeal of § 1392 (local actions). The statute exempts maritime law actions from the typical venue rules under the Federal Rules. |
