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Revised Deadlines in the Federal Rules of Civil Procedure

By Theresa A. Phelps

The Federal Rules of Civil Procedure were revised, effective December 1, 2009, such that the time deadlines set forth in the rules underwent a major overhaul. The primary changes relate to the manner in which deadlines are calculated under the rules. Gone are the complicated days of trying to determine whether to include or exclude weekend days and certain holidays in the calculation of specific deadlines. Undoubtedly prompted by the confusion, headaches, and collateral litigation surrounding the basic issue of how time is calculated, these changes are designed to simplify the calculation under the rules.


Under the newly revised rules, the drafters have taken a “days are days” approach. Stated differently, the calculation of deadlines under the rules now means employing a straightforward method of counting each day during the period. Practitioners must now beware: While under the prior version of the rules, a five-day deadline really meant something much longer than five days (once weekend days and holidays were excluded), under the newly revised rules, five days means five days, plain and simple. Clearly, this change may take some getting used to; however, it will undoubtedly make calculation of deadlines under the rules simpler for all.


This article highlights the specific revisions to the deadlines set forth in the Federal Rules of Civil Procedure from the initial filing of a lawsuit to post-trial. Although focusing on pretrial issues, for the sake of completeness and to avoid any implication that these changes only apply to pretrial issues, this article also addresses changes to the rules applicable at and beyond trial. This article does not, however, address the changes made to computation of time under the Federal Rules of Civil Procedure or the changes made with respect to Rule 12 motions or Rule 56 summary-judgment motion, both of which are addressed in another article in this Winter 2010 edition of PP&D: “Revisions to Federal Rules Change Time-Computation Method,” by Amelia Toy Rudolph and Stacey A. McGavin.


Rule Changes Relating to Pleadings
The revisions to the Federal Rules of Civil Procedure have slightly extended the deadlines regarding pleadings, as the following changes demonstrate.


Rule 13—Amendment of Counterclaims
One interesting revision to the rules deals with amendment of pleadings under Rule 13 to add inadvertently omitted counterclaims. Subsection (f) of Rule 13, which explicitly granted the court power to permit a party to amend a pleading to add an inadvertently omitted counterclaim, has been abrogated. Presumably, however, the court still possesses its inherent power to grant leave to amend pleadings when justice so requires and on such terms as are fair and reasonable under the circumstances.


Rule 14—Third-Party Practice
Leave of the court is now required for a defendant to serve a summons and complaint on a third party who was not a party to the suit if the third party complaint is filed more than 14 days after service of the defendant’s original answer. The prior version of Rule 14(a)(1) required leave of the court to do so if the third party complaint was filed more than 10 days after service of the defendant’s original answer.


Rule 15—Amended and Supplemental Pleadings
Under former Rule 15, a party had a right to amend its pleading once before being served with a responsive pleading, or within 20 days after service of the pleading if no responsive pleading was allowed. Under revised Rule 15, a party may now amend its pleading once as a matter of right within 21 days after serving the pleading, or if the pleading is one to which a responsive pleading is required, within 21 days after service of a responsive pleading or 21 days after service of a Rule 12(b), (e), or (f) motion, whichever is earlier. Unless the court orders otherwise, any required response to an amended pleading must be filed either within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.


Rule Changes Relating to Pretrial Practice
Rule 38—Jury Trial Demands
Demands for a jury trial may now be served 14 days after service of the last pleading directed to the issue to be tried by a jury. Under the prior version of Rule 38, a jury-trial demand had to be served no later than 10 days after service of that pleading.


If a party has demanded a jury trial as to only some of the issues, any other party may now serve a jury-trial demand with respect to any other or all of the factual issues triable by a jury within 14 days (rather than 10 days, as set forth under the prior version of Rule 38) after being served with the partial jury-trial demand.


Rule 55—Default Judgment
A party moving for a default judgment under Rule 55 must now serve the opposing party with written notice of the application for default judgment at least 7 days before the hearing on the motion. Under the prior version of Rule 55, a party moving for a default judgment needed only provide 3 days’ notice.


Rule 6—Notices of Hearing
Under the prior version of Rule 6(c), parties were required to serve a notice of hearing on opposing parties at least 5 days prior to the hearing, with supporting affidavits to be served at least 1 day prior to the hearing, unless a different period of time was established by the court. Under revised Rule 6(c), the notice of hearing must now be served on opposing parties at least 14 days before the date of the hearing (unless the matter is heard ex parte, another rule sets a different time, or a court order sets a different time). Supporting affidavits must also be served at least 7 days before the hearing, unless the court allows the affidavit to be served at another time.


Rule 27 and Rule 32—Depositions
Depositions to perpetuate testimony under Rule 27 are a relatively rare occurrence. Under revised Rule 27, where a petitioner seeks to take a deposition prior to the filing of an action in order to perpetuate testimony, the petitioner must now serve notice of the hearing date at least 21 days in advance. Under the revised rules, depositions cannot be used against a party who received less than 14 days’ notice of the deposition (3 days more than the prior version of Rule 32(a)(5)) if the person to be deposed promptly moved for a protective order and the motion was still pending when the deposition was taken.


The time limit for objecting to written re-cross deposition questions has been extended from 5 days after being served with the question to 7 days after being served with the question. Because of the adoption of the “days are days” approach to calculating time under the revised rules, in most cases, this specific revision is essentially a non-issue as 5 days generally meant at least 7 days under the prior Rules.


Rule 65—Temporary Restraining Orders/Injunctions
Temporary restraining orders (TROs) used to expire, at the latest, 10 days after entry by the court. Under revised Rule 65, temporary restraining orders now expire, at the latest, 14 days after they are issued. This extension gives the party seeking injunctive relief and the court additional certainty and additional time to schedule and conduct a hearing with respect to a request for a preliminary injunction upon expiration of the TRO.


Rule 68—Offers of Judgment
A party defending against a claim may serve an “offer of judgment” on the opposing party pursuant to which the defending party agrees to allow judgment to be taken against the defending party in a certain amount and on certain specified terms. If the offer of judgment is rejected by the claimant pursing the claim, and that party does not ultimately recover more than the amount set forth in the offer of judgment, the claimant may not recover costs from the date that the offer of judgment was served onward (and the claimant may actually have to pay the offering party’s costs from the date the offer was served onward).


Under the prior version of Rule 68, defending parties could serve offers of judgment on opposing parties any time prior to 10 days before trial began. The opposing party then had 10 days after being served with an offer of judgment to accept the offer. Under revised Rule 68, however, offers of judgment must be served at least 14 days before the date set for trial (which may not be the date trial actually begins), and opposing parties now have 14 days after being served with an offer of judgment to accept the offer. If an offer of judgment is made after a defending party’s liability to the opposing party has already been determined, but before the extent of liability has been determined, the party held liable may still make an offer of judgment if made at least 14 days (rather than 10 days) before the date set for the hearing to determine the extent of liability.


Rules Relating to Trial and Post-Trial Practice
Along with these significant revisions to rules that apply only to pretrial proceedings, perhaps the most significant revisions to the deadlines set forth in the rules relate to trial and post-trial practice. Many of these deadlines have been extended for a considerable period and are critically important at and after trial, but also in preparing for trial (i.e., pretrial practice and discovery). Of particular importance are the following revisions.


Rule 48—Polling of Jury
Revised Rule 48 sets forth new subsection (c) providing that, after a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.


Rule 54—Taxation of Costs
The deadlines with respect to taxing costs have also been extended. Following entry of judgment, the clerk of the court, under revised Rule 54, cannot tax costs unless 14 days’ notice is given. Prior to the recent amendments, the clerk could tax costs on 1-day notice. Under the revised rule, the court may review the clerk’s assessment of costs on a motion served within 7 days, as opposed to the 5-day period proscribed by the prior version of Rule 54(d)(1).


Rule 50—Judgment as a Matter of Law
Parties seeking judgment as a matter of law after entry of judgment will now be given additional time to file motions for such relief. Under the prior version of Rule 50, parties had to renew their motions for judgment as a matter of law within 10 days after the entry of judgment or, if the motion addressed a jury issue not decided by a verdict, within 10 days of discharge of the jury. Parties now have 28 days, a considerably longer time, to move for judgment as a matter of law under the revised rules.


Rule 52—Findings and Conclusions of Law in Court-Tried Cases
In court-tried cases or cases tried with an advisory jury, the court now has 28 days, rather than 10 days, after entry of judgment to amend its findings or make additional findings and amend its judgment accordingly.


Rule 59—Motion for New Trial or to Amend Judgment
As with motions for judgment as a matter of law under Rule 50, parties now have 28 days after the entry of judgment (as opposed to the 10-day period provided by the prior version of Rule 59) to file a motion for a new trial or a motion to alter or amend a judgment. When a motion for a new trial is based on affidavit(s), which must be filed with the motion, the opposing party now has 14 days after being served with the motion and affidavit(s) to file opposing affidavit(s). Revised Rule 59 no longer expressly permits the court to extend the deadline for filing opposing affidavits. The court has 28 days after entry of judgment to order a new trial on its own initiative. Prior to the recent revisions to Rule 59, the court had to order such a new trial within 10 days after entry of judgment.


Rule 62—Enforcement of Judgments
The time that a party must wait before executing or enforcing a judgment has also been lengthened under the revised rules. The revisions state that parties who have obtained a judgment in their favor now cannot execute on that judgment or initiate any proceedings to enforce the judgment until 14 days have passed after entry of the judgment.


Rule 62.1—Rulings by District Court after Appeal
The revisions add new Rule 62.1. This rule specifies the trial court’s ability to rule on a motion for relief after an appeal has been docketed and is pending. Under new Rule 62.1, if a timely motion is filed in the district court and the district court lacks jurisdiction to grant the motion because an appeal has been docketed and is pending, the district court may either: (a) defer consideration of the motion; (b) deny the motion; or (c) state either (i) that the district court would grant the motion if the matter was remanded to allow the district court to consider the motion or (ii) issue a ruling indicating that the motion raises a substantial issue. If the district court elects either of the alternatives under option (c), the movant must promptly notify the circuit court clerk under Federal Rule of Appellate Procedure 12.1. If the court remands the matter to allow the district court to rule on the motion, the district court may then decide the motion.


Conclusion
These recent revisions to the Federal Rules of Civil Procedure have a significant impact on litigation, from start to finish. While some of the deadlines set forth in the revised rules reach the same result given the “days are days” approach to calculating deadlines, other deadlines (some of which have existed for some time now) have been significantly altered. While the “days are days” approach should simplify the process of calculating deadlines under the rules, practitioners must carefully review the revised rules to ensure that they are in compliance with the newly established deadlines. Failure to do so could have disastrous results.


Relevant Websites
Cornell website listing the Federal Rules of Civil Procedure.

Document from U.S. Supreme Court showing rule changes [PDF].


Keywords: Federal Rules of Civil Procedure, revised deadlines, rule changes, pleading, pretrial practice, trial practice, post-trial practice


Theresa A. Phelps is an attorney with Rosenblum, Goldenhersh, Silverstein & Zafft, P.C. in St. Louis, Missouri.


This article appears in the Winter 2010 issue of PP&D.


 
  • February 4, 2010 – Revisions to Fed. Civ. Pro Time calculations
  • May 4, 2010 – is there any new ruling that would allow a defendant to have the case tried by a Jury after the deadline for such request was past by 30 days. our previous counsel failed to follow our request and the new counsel found that we had not requested a jury. in addition, the previous counsel failed to submit a "compulsery counter claim" and the new counsel requested that and was denied by the Judge and denied for an extension and is there new us rulings to over rule any washington state rulings on these issues, thanks,

 

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