Amendments to the Federal Rules Of Civil Procedure and to the Federal Rules of Appellate Procedure-What’s of Interest to Civil Litigators

By Hicks Thomas LLP

On December 1, amendments to the various sets of federal procedural rules took effect. The top of the federal judiciary’s “Current Rules of Practice and Procedure” webpage has a useful list of these amendments, including links to full-text and redlined versions of the amended rules and to various explanatory materials.

The following describes the amendments that are likely to be of most interest to federal civil litigators.

Federal Rules of Civil Procedure (FRCP)

Rule 6(d) is amended to remove “electronic” service from the modes of service that allow three additional days to act after being served.

The Legal Information Institute’s version of the FRCP has been updated to incorporate the amendments.

Federal Rules of Appellate Procedure (FRAP)

Word limits

Briefs have long been governed by the word limits in Rule 32(a)(7)(B). Rules 5, 21, 27, 35, and 40 (governing motions and other filings besides briefs) are amended to establish word limits in addition to page limits.

Rule 32(a)(7)(B) is amended to reduce the word limit for principal briefs from 14,000 to 13,000.

Rule 32(e) is amended to authorize a court of appeals to permit filings wordier than permitted by the new limits. The December 2016 version Fifth Circuit’s local rules does not relax the limits. By contrast, the December 2016 version of the Ninth Circuit’s local rules retains the old 14,000-word limit for principal briefs.

The requirement of a certificate of compliance vis-à-vis word limits is moved from Rule 32(a)(7)(C) to Rule 32(g) and amended to incorporate the newly established non-brief limits. Rule 32(f) now contains the items excluded from a word count.

Other matters

FRAP 4(a)(4)(A) governs the effect of a listed post-judgment motion (e.g., for judgment as a matter of law under FRCP 50(b) or for a new trial or to alter or amend a judgment under FRCP 59) on the deadline for filing a notice of appeal. FRAP 4(a)(4)(A) is amended to clarify that such a motion extends the deadline only if the motion is filed “within the time allowed by those rules,” i.e., only if it is timely as determined by the FRCP and without regard to agreement or waiver or a district court’s erroneous calculation.

Like FRCP 6(d) above, FRAP 26(c) is amended to remove “electronic” service from the modes of service that allow three additional days to act after being served.

Rule 29 is renumbered Rule 29(a) and Rule 29(b) is added to govern amicus briefs addressed to a court’s consideration of whether to grant panel rehearing or rehearing en banc.

The Legal Information Institute’s version of the FRAP has been updated to incorporate the amendments.