Big Changes to the Federal Rules of Civil Procedure

Windows 7 was not my idea. But the new amendments to the Federal Rules of Civil Procedure? Maybe! A few years ago I received a stern reprimand from a federal judge in the Eastern District of Virginia for supposedly filing a brief past the 5-day deadline. I respectfully explained to the court that, under the Rules then in effect, because weekend days are not counted in time periods of less than 11 days, and because additional days are added to the deadline when papers are served by facsimile, and because if a deadline expires on a Saturday then the deadline is extended to the following Monday–or Tuesday if Monday happens to be a national holiday–then a “5-day deadline” can actually allow up to 147 days! The judge was not impressed. But I was right (up to a point), so now the Rules have been amended to prevent this sort of nonsense.

Effective today, “days” means days. For lawyers who practice in federal court, this is a radical concept. Perhaps even more radical, defendants now have 21 days in which to respond to a lawsuit rather than merely 20. I pity those about to take the bar exam. In any event, here is a summary of what are, in my view, the most significant changes to the Federal Rules of Civil Procedure:

Rule 6. Computing and Extending Time; Time for Motion Papers
No longer are intermediate weekend and holiday days excluded from the computation for periods of less than 11 days. Every day is counted. This means that 10-day deadlines will no longer (in some circumstances) result in time periods longer than those permitted by 14-day deadlines. Additionally, what was once a 5-day deadline for noticing hearings has been converted to a 14-day deadline. Supporting affidavits must be filed with the motion and any opposing affidavits are now due a full 7 days before the hearing instead of just 1 day as under the previous Rule.

Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
Hold onto that motion for default judgment! Defendants now have 21 days in which to serve an answer, as they do in Virginia state court, rather than 20 days. The new 21-day period also applies to counterclaims and cross-claims.

Rule 13. Counterclaim and Crossclaim
In the past, negligent lawyers who failed to file a compulsory counterclaim could turn to Rule 13(f), which permitted a late counterclaim if its omission was the result of “oversight, inadvertence, or excusable neglect.” That Rule is gone! However, not all hope is lost: Rule 15 still provides a procedure for adding an omitted counterclaim.

Rule 15. Amended and Supplemental Pleadings
Under the former Rule, a plaintiff had a right to amend its complaint once, as a matter of course, only before being served with a responsive pleading. That right has been extended, presumably to encourage the informal resolution of early motions to dismiss without burdening the court’s docket. Now, a plaintiff may amend its complaint (without leave of court) a full 21 days after service of a responsive pleading or Rule 12(b) motion.

Rule 56. Summary Judgment
The procedure for obtaining summary judgment in federal court has historically been very complicated, requiring numerous calculations. Under new Rule 56, the procedure is streamlined. Absent a local rule to the contrary, any party may now move for summary judgment at any time until 30 days after the close of discovery. The party defending against summary judgment then has 21 days in which to file a responsive brief. The movant has 14 days after that to file a reply brief.

Numerous other amendments were made to the Federal Rules, but I am not going to discuss them all here. A useful generalization (not without exceptions) is that most deadlines throughout the Rules have been converted to multiples of 7: previous deadlines of 1, 3, or 5 days are now 7 days; periods of 10 or 11 days are now 14 days; and 20-day deadlines now allow 21 days. Most discovery deadlines, however, remain unaffected. Litigants still have 30 days in which to respond to document requests and interrogatories.

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