As of Dec. 1, several amendments take effect in federal civil and appellate practice.
Three days no longer added for ECF service. Prior to Dec. 1, Rule 6(d) of the Federal Rules of Civil Procedure has provided three additional days for service made under Rule 5(b)(2)(C), (D), (E), or (F). This has meant that three days have been added to deadlines when parties are served by: mail (Rule 5(b)(2)(C)); leaving with clerk if no known address (Rule 5(b)(2)(D); sending electronically by ECF (Rule 5(b)(2)(E)); and by other means consented to in writing (Rule 5(b)(2)(F)).
Effective Dec. 1, Rule 6(d) is amended to read: “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).”
What changed? Rule 6(d) deletes the reference to Rule 5(b)(2)(E), which is the electronic means/ECF provision. This, of course, is how we all receive filings in federal court after initial service of process. Accordingly, effective Dec. 1, three days are no longer added for deadlines in responding to orders or filings served via the courts’ ECF system.
As is the case with all federal rule amendments, these changes take effect in cases commenced on or after that date, and to the extent “just and practicable” to pre-existing cases. Counsel should expect that courts will apply this simple amendment to cases that were filed prior to Dec. 1 as it will be “just and practicable” to do so.
Why the change? The Rules Committee Comments explain that the three-day additional time is no longer necessary. The comments note, “Rule 5(b)(2) was amended in 2001 to provide for service by electronic means. Although electronic transmission seemed virtually instantaneous even then, electronic service was included in the modes of service that allow 3 added days to act after being served. There were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and in widespread skill in using electronic transmission.”
Furthermore, the three-day addition interfered with the prior amendments aimed at easing calculations. The committee explained, “Diminution of the concerns that prompted the decision to allow the 3 added days for electronic transmission is not the only reason for discarding this indulgence. Many rules have been changed to ease the task of computing time by adopting 7-, 14-, 21-, and 28-day periods that allow ‘day-of-the-week’ counting. Adding 3 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.”
This elimination of the three-day extension for ECF service makes sense. Deadlines should be simple to calculate. The committee noted that the elimination of the three-day period can result in challenges in some situations such that extensions might be in order, writing, “Electronic 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. Extensions of time may be warranted to prevent prejudice.”
Appellate amendments. A number of the Federal Rules of Appellate Procedure are amended as well, specifically Appellate Rules 4, 5, 21, 25, 26, 27, 28, 28.1, 29, 32, 35 and 40, and Forms 1, 5 and 6, new Form 7 and new Appendix. The most significant changes are a similar removal of the three-day additional period when a party is served electronically, and reduction of word limits for appellate briefs from 14,000 words to 13,000 words.
Annual federal practice seminar – The annual federal civil practice seminar is set for Friday, Dec. 16 in Indianapolis from 1:30-4:45 p.m. Register online at www.theindianalawyer.com/events.•
John Maley — [email protected] — is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters, and appeals. He serves as chair of the Southern District of Indiana’s Local Rules Advisory Committee and is a member of the Northern District of Indiana’s Local Rules Advisory Committee. The opinions expressed are those of the author.