2016 Amendments to Federal Rules of Civil Procedure 4, 6, and 82

In April 2016, the United States Supreme Court voted to approve three amendments to Federal Rules of Civil Procedure 4, 6, and 82, which will become effective on December 1, 2016.

Rule 4(m) of the Federal Rules of Civil Procedure

FRCP 4(m) holds that if a defendant is not served with the complaint and summons within 90 days after the complaint is filed, the court may dismiss the action without prejudice against that defendant or order that service be made within a specified time. If the plaintiff has good cause for having failed to serve the defendant, the court must extend the time for service for an appropriate time.

Under the prior version of this rule, subdivision (m) did not apply to service in a foreign country under Rule 4(f) or 4(j)(i). The amended added Rule 4(h)(2) to the exclusion.

The Committee Note explains the reasoning for the amendment to Rule 4(m) as follows:

“Rule 4(m) is amended to correct a possible ambiguity that appears to have generated some confusion in practice. Service in a foreign country often is accomplished by means that require more than the time set by Rule 4(m). This problem is recognized by the two clear exceptions for service on an individual in a foreign country under Rule4(f) and for service on a foreign state under Rule 4(j)(1). The potential ambiguity arises from the lack of any explicit reference to service on a corporation, partnership, or other unincorporated association. Rule 4(h)(2) provides for service on such defendants at a place outside any judicial district of the United States “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” Invoking service “in the manner prescribed by Rule 4(f)” could easily be read to mean that service under Rule 4(h)(2) is also service “under” Rule 4(f). That interpretation is in keeping with the purpose to recognize the delays that often occur in effecting service in a foreign country. But it also is possible to read the words for what they seem to say— service is under Rule 4a(h)(2), albeit in a manner borrowed from almost all, but not quite all, of Rule 4(f).”

Rule 6(d) of the Federal Rules of Civil Procedure

FRCP 6 addresses computing and extending the time for service. Under the new version of Rule 6(d), three (3) days are added after the period would otherwise expire under Rule 6(a) 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. In short the amendment eliminates the 3-day addition to the deadline when service is made electronically.

The Committee Note explains the reasoning for the amendment to Rule 6(d) as being two-fold. In the early 2000s, there was concern that electronic transmissions may be delayed or system incapabilities may cause difficulty in opening attachments. The advancement of technology has alleviated those concerns. Second, “[m]any 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.”

Rule 82 of the Federal Rules of Civil Procedure

FRCP 82 was amended to reflect the appeal of 28 U.S.C. § 1392, and the enactment of 28 U.S.C. § 1390. As such the new version of Rule 82 reads as follows: “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.”

In 2015, the Supreme Court made extensive changes to the discovery rules in the Federal Rules of Civil Procedure, which I have previously outlined, showing side-by-side comparisons.

Photo by WFIU Public Radio.