The 2016 Amendments to the Federal Rules of Civil Procedure: Eliminating the Three-Day Rule for Electronic Service

On December 1, 2016, absent congressional action, new amendments to the Federal Rules of Civil Procedure will take effect, amending Rules 4, 6, and 82.  (See At-A-Glance Summary, infra.)  While these changes seem mostly technical, the amendment to Rule 6(d) is likely to have a fairly significant impact on the calculation of deadlines in civil actions.

Rule 4: Time Limit for Service

(m) 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)  or to service of a notice under Rule 71.1(d)(3)(A).

Rule 4(m) mandates dismissal of complaints which are not served within 90 days after they are filed.  Realizing that this 90-day period is impractical where service must be effected overseas, the rule does not apply to service on an individual in a foreign country under Rule 4(f) or on a foreign state under Rule 4(j)(i).  The existing Rule 4(m), however, is silent with respect to service on corporate entities in a foreign territory.  The amendments to Rule 4(m) resolve this ambiguity, clarifying that the 90-day rule does not apply where service on a corporation, partnership or association takes place in a foreign territory pursuant to Rule 4(h)(2).

Rule 6: Computing and Extending Time

(d) When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with clerk), (E),  or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

Under the current Rule 6(d), when a party must act within a specified time after being served, the party receives three additional days to respond if service is completed by any means other than personal delivery.  For years, this meant that a party served electronically – including through the court’s CM/ECF system – received three additional days after service to act.  Even though electronic service essentially is instantaneous, the Judicial Council believed that the three additional days were necessary to alleviate any concerns over the reliability of electronic transmission.

As this concern has diminished, and many rules have been changed to simplify how deadlines are calculated, the three additional days for electronic service seemed unnecessary and often was forgotten. Accordingly, the 2016 Amendments eliminate the three-day rule for electronic service.¹ While this is a much-welcomed change for all procedure geeks – there are dozens of us – it raises two issues.

First, in the short term, it is unclear how this amendment should apply in cases already pending. In adopting the 2016 Amendments, the Supreme Court Chief Justice John G. Roberts ordered these amendments to govern in all proceedings in civil cases after December 1, 2016 and “insofar as just and practicable, all proceedings then pending.”  In practice, the amended Rule 6(d) should apply to papers served after December 1, 2016, and not those served before then, but no further guidance has been provided.

Second, this change effectively gives parties less time to respond when a deadline is triggered by electronic service of a pleading – for example, a defendant will only have 14 days (instead of 17 days) to respond to an amended complaint served through the CM/ECF system.  Indeed, the Committee Notes acknowledge that this change “may result in a practical reduction in the time available to respond” when service occurs after business hours or before a weekend or holiday and as a result, “[e]xtensions of time may be warranted to prevent prejudice.”  Therefore, extensions from the court or stipulations extending the time to respond may become more common as a result of this amendment.

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 not a civil action for purposes of 28 U.S.C. §§ 1391-1392governed by 28 U.S.C. § 1390.

The amendments to Rule 82 recognize the revisions resulting from the enactment of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“the Act”).  Of particular relevance here, the Act abolished the venue distinctions between “local” and “transitory” actions by repealing 28 U.S.C. § 1392.  The Act also enacted 28 U.S.C. § 1390, which implemented general venue provisions, clarified that admiralty actions are excluded from the general venue provisions, and explained that the venue statutes do not dictate how venue is determined for cases removed to federal court.  Rule 82 has been amended to reflect the enactment of 28 U.S.C. § 1390 and the repeal of 28 U.S.C. § 1392.

FOOTNOTE
1 Appellate Rule 26(c), Bankruptcy Rule 9006(f), and Criminal Rule 45(c) have also been amended to eliminate the three-day rule for electronic service. The Ninth Circuit, however, will continue to provide these additional three days. See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000853. Additionally, some local rules may continue to adhere to the three-day rule. See, e.g., U.S. District Court of Oregon Local Rule 6. Thus, the applicable local and circuit rules must be consulted before calculating a deadline.