Scenario

Counsel for the defendant in an employment discrimination case receives a filing from the court’s Case Management/Electronic Case Files (“CM/ECF”) system. The filing requires a response within 30 days. In-house counsel seems to remember that the US Federal Rules of Civil Procedure add three extra days to the deadlines for responding to CM/ECF filings and plans accordingly. In-house counsel asks her outside counsel if the recent (December 1, 2016) amendments to the Federal Rules preserve the “Three-Day Rule.”

New Deadlines in Civil Actions—“Three-Day Rule” No Longer Applies to CM/ECF Filings

The short answer is no, they do not. On December 1, 2016, a number of changes to the Federal Rules of Civil Procedure went into effect, amending Rules 4, 6 and 82. Most of the changes are minor or technical. Rule 4(m) now makes clear that the 90-day time limit for service of process does not apply to service on foreign corporations, partnerships and associations. Rule 4(a)(4) resolves a circuit split by clarifying that untimely post-judgment motions made outside the Federal Rules’ deadlines do not restart the time to appeal. And Rule 82 was amended to reflect the repeal of 28 U.S.C. § 1392 and enactment of 28 U.S.C. § 1390.

The change to Federal Rule of Civil Procedure 6, which sets out the rules for computing when responses are due to filings in civil actions, is more significant: amended Rule 6(d) eliminates the “three-day rule” for CM/ECF filings. Prior to the amendment, Rule 6(d) added three days when a deadline or period of time found in the rules or in a court order is triggered by electronic service of a document, even though electronic submissions usually were received instantaneously. In 2001, when the Federal Rules were amended to allow electronic service, the three additional days were allowed to address concerns over the reliability of electronic transmission.

Now, as the CM/ECF system has become more accepted as a reliable source of transmission, the rules have caught up to technology. Going forward, service by electronic means —including service through a court’s CM/ECF system—will be treated the same as personal service for time computation purposes. Rule 6(d)’s parallel rules—Federal Rule of Appellate Procedure 26(c), Federal Rule of Bankruptcy Procedure 9006(f), and Federal Rule of Criminal Procedure 45(c)—have been amended in kind.

Strategies and Best Practices

Although the amendments do not say whether they apply to pending cases or only to cases filed after December 1, the US Supreme Court in adopting the amendments ordered that they would govern in all proceedings in civil cases filed after December 1, 2016, and “insofar as just and practicable, all proceedings then pending.” As a practical matter, attorneys should assume that the amended rule applies to electronic filings in both new and pending cases served after December 1, 2016.

It’s worth noting that the amendment to Rule 6(d) applies to all service by electronic means and to discovery as well as motions and pleadings. In practice, this may truncate already-short deadlines considerably. For example, a defendant now will only have 14 days (instead of 17) to respond to an amended complaint served through the CM/ECF system. While the Rules Committee recognized that the new rule “may result in a practical reduction in the time available to respond” when service occurs after business hours or before a weekend or holiday, they added that “extensions of time may be warranted to prevent prejudice.” Nevertheless, an attorney should not take the availability of an extension for granted.

In response to the change, some courts have opted to revise periods of time set out in their local rules or expand the availability of electronic service. For example, the Eastern District of Virginia has amended Local Civil Rule 7(f) to make oppositions to motions due 14 days after service (previously 11 days) and replies due six days after service of the opposition (previously three days). The Court of Appeals for the Ninth Circuit has announced that its local rules “will continue to provide the additional 3 days for service by electronic method for those deadlines that are based on service of another document.” And the Southern District of Florida’s Local Rule 5.1(e) now provides that discovery papers and other papers required to be served, but not filed, may be served on the attorney of record via the email address the attorney designated to receive CM/ECF notices. Other local rule changes may be forthcoming, and it is a best practice to review the local rules of the forum court when calculating deadlines.

Conclusion

Federal Rule of Civil Procedure 6(d) no longer provides for an additional three days for response times calculated from the date of electronic service. Attorneys must keep this in mind for future filings—and consult the local rules on whether the amended rule applies to any existing filings.