• Changes to Federal Rules of Civil and Appellate Procedure
  • March 30, 2006 | Author: Christopher J. Huber
  • Law Firm: Pepper Hamilton LLP - Philadelphia Office
  • On December 1, 2005, multiple amendments were made to both the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure. Several of these amendments are worth noting. The most notable amendments to the FRCP include:

    • Rule 6(e) was amended to clarify when the three days are added after service by mail
    • Rule 45 was amended to require any subpoena for a deposition to state the manner of recording the testimony.

    The most notable changes to the FRAP are:

    • Clarification of the safe harbor in Rule 4 for litigants who fail to bring timely appeals because they did not receive notice of entry of a judgment against them
    • An amendment to Rule 27 that requires motions to comply with the typeface and type-style requirements of Appellate Rule 32
    • New Rule 28.1 that clarifies requirements in cross-appeals
    • An amendment to Rule 35(a) to define "majority" for purposes of voting to rehear a case en banc.

    Amendments to the Federal Rules of Civil Procedure

    For practicing attorneys, the most relevant amendment to the FRCP may be the clarification of when the three days are added after service by mail. As noted in the discussion of the amendment, former Rule 6(e) had four possible readings, resulting in confusion (and possible missed filing deadlines based on an inaccurate interpretation). Rule 6(e), as amended, clarifies that the three days are added after the prescribed period would otherwise expire under Rule 6(a). The Comments to the Rule provide several useful examples, and this amendment should remove any doubts when calculating filing dates under Rule 6(a).

    The second amendment with practical consequences is the change to Rules 30 and 45 that require a subpoena itself to state the manner of recording deposition testimony. Before the amendments, a party would receive notice of the manner of recording under Rule 30(b0(2), but the actual deponent did not necessarily receive similar notice. The amendments rectify this situation.

    Amendments to the Federal Rules of Appellate Procedure

    Rule 4 was amended to clarify what is necessary for an appellant to move to reopen the time to appeal. Before the amendment, four circuit courts were split over what type of notice was sufficient to trigger the seven-day window for moving to reopen the time to appeal. The amendment clarifies that if a party does not receive notice under FRCP 77(d), then the safe harbor period provided in FRAP 4(a)(6) is available.

    The amendments also resolved the question of what format motion papers must take. Previously, the FRAP did not include specific formatting requirements for motions, responses, or replies; each circuit court was left to implement local rules, resulting in numerous inconsistencies. Rule 27 was amended to require all motion papers to conform to the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6).

    An amendment also added Rule 28.1, which deals entirely with the procedures and briefing in cases involving cross-appeals. The new rule provides clear guidance on the order, contents and timing of briefing, as well as the length of each of the four briefs filed by the parties.

    Finally, Rule 35(a) was amended to make clear that judges who are disqualified do not count in determining whether a majority of the circuit judges in regular active service voted to hear or rehear a case en banc, remedying a circuit split.