A Practitioner's Guide to the December 2016 Federal Rule Amendments | Practical Law

A Practitioner's Guide to the December 2016 Federal Rule Amendments | Practical Law

A Legal Update providing a practical guide to the December 1, 2016 amendments to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Appellate Procedure (FRAP).

A Practitioner's Guide to the December 2016 Federal Rule Amendments

Practical Law Legal Update w-004-4536 (Approx. 5 pages)

A Practitioner's Guide to the December 2016 Federal Rule Amendments

by Practical Law Litigation
Law stated as of 01 Dec 2016 • USA (National/Federal)
A Legal Update providing a practical guide to the December 1, 2016 amendments to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Appellate Procedure (FRAP).
Amendments to the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Appellate Procedure (FRAP) became effective on December 1, 2016. Here is a look at the pertinent changes by category.

Service of Process

The new FRCP 4(m) clarifies that the 90-day time limit for serving process does not apply to service abroad on corporations, partnerships, and associations.

Serving Interlocutory Documents

Under the amendments to both the FRCP and FRAP, parties receiving a document by electronic service no longer may add three days to a response time calculated from the date of service (FRCP 6(d), FRAP 26(c)).

Time to Appeal

Resolving a circuit split, the amendments provide that parties must make post-judgment motions within the deadlines stated in the FRCP for those motions to restart the time to appeal. Motions made outside the FRCP's deadlines, even with the district court's permission or the opposing party's consent, do not affect the time to appeal. (FRAP 4(a)(4).)

Inmate Filings

Amendments to the FRAP also clarify when and how an institutional inmate may take advantage of the "mailbox rule" for appellate filings (FRAP 4(c), FRAP 25(a)(2)(C), and FRAP Form 7.)

Length Limits and Certificates of Compliance for Appellate Filings

The new rules substantially alter the length limits on various appellate filings. FRAP 32(f) provides a uniform list of items excluded from the FRAP's length computations.
Parties must include certificates of compliance for all filings with type-volume or word limits, other than notices of supplemental authorities submitted under FRAP 28(j) (FRAP 32(g)).
FRAP Form 6 was revised to reflect revised length limits for briefs, motions, and other documents filed in the federal courts of appeals. The FRAP Appendix summarizes the FRAP's length limits for briefs, motions, and other documents filed in the federal courts of appeals.

Case-Initiating Petitions

Petitions used to commence proceedings in the appellate courts are subject to new length limits.
Parties petitioning for or opposing permission to appeal must limit their papers to 5,200 words when preparing them on a computer, except by the court's permission (FRAP 5(c)).
Parties petitioning for or opposing writs of mandamus and prohibition and other extraordinary writs must limit their papers to 7,800 words when preparing them on a computer, except by the court's permission (FRAP 21(d)).

Appellate Motions

Motions and motion responses may not exceed 5,200 words when prepared using a computer, except by the court’s permission. Motion replies may not exceed 2,600 words when prepared using a computer, except by the court's permission. (FRAP 27(d).)

Appellate Brief Length Limits

Limits in Ordinary Appeals

The appellant's and appellee's principal briefs are limited to 13,000 words when using the word count option, except by the court's permission (FRAP 32(a)(7)(B)(i)).
Reply briefs are limited to 6,500 words when using the word count option, except by the court's permission (FRAP 32(a)(7)(B)(ii)).
The amendments do not alter the limits for parties measuring length using page counts or lines of monospaced text (FRAP 32(a)(7)(A)).

Limits in Cross-Appeals

The new rules limit the length of the parties' briefs on cross-appeal when using the word count option. Except by the court's permission:
  • The appellant's principal brief is limited to 13,000 words.
  • The appellee's principal and response brief is limited to 15,300 words.
  • The appellant's response and reply brief is limited to 13,000 words.
  • The appellee's reply brief is limited to 6,500 words.
(FRAP 28.1(e).)
The amendments do not alter the limits for parties measuring length using page counts or lines of monospaced text (FRAP 28.1(e)).

Local Variation of Length Limits

FRAP 32(e) clarifies a court's ability (by local rule or order) to modify the default length limits for briefs, motions, and other documents. Several circuit courts have announced their intention to adopt local rules maintaining the old word limits, so counsel must remember to check the local rules before preparing appellate filings.

Rehearing Petitions

Length Limits for Petitions

Petitions for panel rehearing, hearing en banc, or rehearing en banc may not exceed 3,900 words when prepared using a computer, except by the court's permission (FRAP 35(b) and 40(b)).

Amicus Curiae Filings in Connection with Rehearing

The United States, a federal agency, a federal officer, or a state may file an amicus brief in connection with rehearing. Any other amicus must move the court for permission to file (FRAP 29(b)(2)).
An amicus curiae supporting a petition for panel rehearing or rehearing en banc (or supporting neither party) must file its brief and any required motion within seven days after the petition is filed. An amicus curiae opposing a rehearing petition must file its brief and any required motion no later than the date set by the court for the response. (FRAP 29(b)(5).)
Amicus filings in connection with rehearing petitions may not exceed 2,600 words when prepared using a computer, except by the court’s permission (FRAP 29(b)(4)).