Update on the Recent Changes to the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure

On December 1, 2016, new amendments to Rules 4, 6, and 82 of the Federal Rules of Civil Procedure (FRCP), as well as several revisions to the Federal Rules of Appellate Procedure (Appellate Rules), took effect. While the changes seem mostly technical, the amendments to FRCP 6(d) and Appellate Rule 26(c) are likely to have a significant impact on the calculation of deadlines in civil actions, and the changes in word limits for the appellate rules will shorten the length of briefs and additional filings in a majority of the appellate courts.

Below is a more detailed explanation of the amendments to Rules 4, 6, and 82¹ as well as the word limit changes to the Appellate Rules.

FRCP 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 that are not served within 90 days after they are filed. The previous Rule 4(m), however, was silent with respect to service on corporate entities in a foreign territory and the amendment resolves this ambiguity by clarifying that the 90-day rule does not apply where service on a corporation, partnership or association takes place in a foreign territory in accordance with Rule 4(h)(2).

FRCP 6: Computing and Extending Time

(d) When a party may or must act within a specified time after service being served 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),² 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. Fourteen years of experience with electronic filing belied any concern over the reliability of electronic transmission concerns, and the 2016 revisions remove the benefit of the three-day rule for documents filed electronically.

FRCP 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. §§ 1391-1392 governed by 28 U.S.C. § 1390.

The amendment to Rule 82 reflects the enactment of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, which repealed 28 U.S.C. § 1392 and enacted 28 U.S.C. § 1390.

Word Limits Shortened for Appellate Filings

In addition to changing the three day rule for service of electronically filed documents (as described above), the 2016 Appellate Rule amendments also reduce the length limits imposed on briefs and other papers filed in appeals.³ As of December 1, 2016, the Appellate Rules now convert the page limits for all filings generated on computer to word limits, and impose a conversion ratio of 260 words per page (rather than the ratio of 280 words per page set for briefs only in 1998). Accordingly, the new length limits for the most common computer-generated filings will be as follows:

Rule	2016 Limits
Rule 5: Appeals by Permission	5,200 words
Rule 21: Writs of Mandamus, Prohibition and Other Extraordinary Writs	7,800 words
Rule 27: Motions and Responses	5,200 words
Rule 27: Replies	2,600 words
Rule 35 and 40: Petitions for Rehearing	3,900 words
Rule 32: Briefs on Appeal Principal Brief Responsive Brief Reply Brief	13,000 words 13,000 words 6,500 words
Rule 28.1: Briefs in Cross-Appeals Opening Brief Cross-Appellant’s Brief Cross-Appellee’s Reply Brief Cross-Appellant’s Reply Brief	13,000 words 15,300 words 13,000 words 6,500 words

It is important to review the local rules of the federal courts where cases are pending, as the word limit reductions were controversial when proposed and many circuits have opted out of them. For example, 2d Cir. Loc. R. 28.1.1, 7th Cir. R. App. P. 32(c), 9th Cir. R. 32-1, and Fed. Cir. R. 32(a) all state that the shorter page limits do not apply to briefs.⁴ It is also important to determine how each court is implementing these changes, as some courts are applying the rules based on when the appeals were docketed and others are using the setting of the briefing schedule as the line of demarcation or appear willing to modify the rules in the middle of a briefing schedule.

Contact your Dinsmore attorney with questions.

¹ New material is underlined; matter to be omitted is lined through.
² The same analysis applies to the change in Appellate Rule 26(c) in appellate courts.
³ The Appellate Rules amendments package also includes additional amendments, which can be accessed from the Supreme Court’s website at
https://www.supremecourt.gov/orders/courtorders/frap16_j92i.pdf.
⁴ Additionally, 9th Cir. R. 26-2 states that the three-day service allowance applies to documents served by the Appellate CM/ECF system.