2017 Amendment to Federal Rule of Civil Procedure 4(m)
That last two years have brought extensive changes to the Federal Rules of Civil Procedure. In 2015, the discovery rules underwent broad revisions, and I have recently discuss some of the practical effects of those changes. The amendments in 2016 were less comprehensive and only entailed Federal Rules of Civil Procedure 4, 6, and 82.
Unfortunately, the 2016 amendment to Federal Rule of Civil Procedure 4 had an unintended consequence that www.federalrulesofcivilprocedure.org has succinctly identified:
Civil Rule 4(m) addresses the time limit for service of a summons and was amended in two consecutive years, 2015 and 2016. In addition to shortening the presumptive time for service from 120 days to 90 days, the 2015 amendment added an exemption from the time limit for Rule 71.1(d)(3)(A) notices of a condemnation action. The 2016 amendment added another exemption for Rule 4(h)(2) service on a corporation, partnership, or association at a place not within any judicial district of the United States.
The sequential amendments resulted in an error. The 2016 amendment exempting Rule 4(h)(2) was prepared in 2014, before the 2015 amendment exempting Rule 71.1(d)(3)(A) was in effect. Once the 2015 amendment became effective, it should have been incorporated into the proposed 2016 amendment then making its way through the Rules Enabling Act process, but such a revision of the 2016 materials was overlooked. As a result, Rule 71.1(d)(3)(A) was not included in the list of exemptions in Rule 4(m) when the 2016 amendment became effective. The Advisory and Standing Committees unanimously recommend restoring Rule 71.1(d)(3)(A) to the list of exemptions in Rule 4(m) without re-publication.
Amended Federal Rule of Civil Procedure 4 (2017)
Once the newest version of FRCP 4(m) becomes effective on December 1, 2017, it will read as follows:
(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), or to service of a notice under Rule 71.1(d)(3)(A).
Photo via Penn State.