Commercial Litigation and Arbitration

December 1, 2009: Immediate Changes to Federal Practice

Download associated file: 1 Dec 2009 Amendments to Federal Rules of Civil Procedure.pdf 

Federal practice changes substantially on December 1, 2009. Principal changes to the Federal Rules of Civil Procedure effective 12/1/09:

1. A complaint can be amended as of right for only 21 days after a motion to dismiss is filed. Previously, the right to amend extended indefinitely until an answer was filed. The 21-day clock starts when a motion to dismiss (or to strike or for a more definite statement) is filed. Rule 15(a)(1)(B).

Note: The rule is not limited to new motions (i.e., those filed after 12/1/09). If a motion was filed more than 21 days before December 1, 2009, the right to amend as of right may be forfeited on December 1, 2009, by immediate operation of the new rule.

2. An answer no longer closes the pleadings — the plaintiff has 21 days to amend as of right after the answer is filed. (The same is true for counterclaims, cross-claims, third-party claims — any claim-asserting pleading.) Rule 15(a)(1)(B).

3. The method for counting time under the Federal Rules, local rules and court orders has changed. (Rule 6).

• Intervening weekends and holidays are now counted. Rule 6(a)(1)(B).

• New rules for counting hours have been added (e.g., under a court order), and these rules are not intuitive. Rule 6(a)(2).

• 3 extra days for service by mail continues, and computation rules may afford more than 3 extra days. First, you compute the time period set forth in the Rules, including, if the last day is a weekend or holiday, the extension to the next business day. Then you add 3 days. Rule 6(d).

• Local rules: 10 days under a local rule now means 10 calendar days, not 14 or 15 calendar days, as it did on November 30, 2009. Many local rules have been changed to expand time periods (e.g., SDNY/EDNY).

• Time limits have been changed throughout the Civil, Appellate, Criminal and Bankruptcy Rules.

4. A motion for summary judgment may be filed immediately. The former 20-day waiting period is gone. Absent a court order, whenever a summary judgment motion is filed, the responsive brief is due 21 days later. Rule 56(c)(1)(A).

5. District Judges may issue provisional rulings after the notice of appeal is filed. If so, the ruling must be brought to the attention of the Court of Appeals. New Rule 62.1.

6. The CAFA typo regarding timing of noticing an appeal from a remand order is fixed. The theoretically perpetual statutory right of appeal (“not less than 7 days after entry of the [remand] order” — with no outside date), is now 10 calendar days. 28 U.S.C. § 1453.

A copy of the amendments is attached (above).

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