Wednesday, September 7, 2016
In April 2016, the U.S. Supreme Court adopted amendments to Rules 4, 6, and 82 of the Federal Rules of Civil Procedure. These amendments would:
(1) add to the last sentence of Rule 4(m) a clarification that Rule 4(m)’s 90-day deadline for serving process does not apply to service in a foreign country under Rule 4(h)(2);
(2) amend Rule 6(d) to remove service by electronic means from the modes of service that allow 3 added days to act after being served; and
(3) amend Rule 82 to reflect the 2011 legislation enacting 28 U.S.C. § 1390 and repealing § 1392.
Unless Congress intervenes, these amendments will go into effect on December 1, 2016.
Last week, Sixth Circuit Judge Jeffrey Sutton, who chairs the Standing Committee, sent the following letter to Vice President Joe Biden (who in that capacity is also President of the U.S. Senate) and to Speaker of the House Paul Ryan:
The letter addresses an issue regarding the 2015 and 2016 amendments to Rule 4(m). The final text of the amendment that the Supreme Court adopted in April 2016 omitted language that had been added in 2015, which instructed that Rule 4(m)’s 90-day deadline for serving process does not apply to “service of a notice under Rule 71.1(d)(3)(A).” The omission appears to have been inadvertent—that language was not stricken in the redlined version of the 2016 amendment, nor was it referred to in the advisory committee note for the 2016 amendment.
Judge Sutton writes that, despite the omission, the “net effect” of the 2015 and 2016 amendments would include language regarding both Rule 4(h)(2) and Rule 71.1(d)(3)(A) in the last sentence of Rule 4(m). He concludes:
[I]f the current amended rule pending before Congress goes into effect on December 1, 2016, it henceforward will read:
“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).”