Non-Time-Computation Amendments to Federal Rules of Civil Procedure Effective December 1, 2009

On March 26, 2009, the Supreme Court approved proposed amendments to the Federal Rules of Civil Procedure.  Many of the proposed amendments change timing requirements and the way in which deadlines are calculated.  Other amendments affect other aspects of civil procedure in the United States District Courts.  Regarding these changes, the Judicial Conference Report states: 

  • The proposed amendment to Rule 13 deletes subdivision (f), which sets out standards for amending pleadings to add a counterclaim. The subdivision is redundant of Rule 15, which sets out standards for amending pleadings in general. The proposed change codifies courts’ practice
    of applying uniform standards to the amendment of pleadings.
  • The proposed amendment to Rule 15(a) limits the time when a party may amend a pleading to which a responsive pleading is required once as a matter of course. The proposal eliminates the distinction drawn by present Rule 15(a), under which a responsive pleading
    immediately cuts off the right to amend, while a Rule 12 motion does not cut off the right and prolongs the time to amend a pleading until the motion is resolved. Significant problems can arise when a party files an amended pleading as a matter of right on the eve of a court’s ruling on
    a dispositive Rule 12 motion. Under the proposed amendment, a party may file an amended pleading without leave of court within 21 days after service of a responsive pleading or 21 days after service of a Rule 12 motion, whichever is earlier. After that, a party may file an amended pleading only with leave of court.
  • The proposed amendment to Rule 48 adds a provision similar to that in corresponding Criminal Rule 31 that allows a court to poll the jury individually on its own and requires a poll at a party’s request.
  • Proposed new Rule 62.1 is integrated with the parallel proposed new Appellate Rule 12.1. Proposed Rule 62.1 codifies and makes consistent practices followed in almost all circuits when a motion is made regarding a matter that the district court is in a better position to determine than the court of appeals, but the district court judge cannot rule on the motion because an appeal has been filed and jurisdiction invested in the court of appeals. The district court may defer ruling, deny the motion, or either indicate that it would be inclined to grant the motion if the case were remanded (the so-called indicative ruling) or state that the motion raises a substantial issue. Requests for indicative rulings typically arise when a party files a Rule 60(b) motion after an appeal has been filed. The procedure facilitates cooperation between the district court and the court of appeals, enabling them to determine whether it is better to decide the appeal before deciding the motion. A party must notify the court of appeals if the district court states that it would grant the postjudgment motion or that the motion raises a substantial issue.
  • The proposed amendment to Rule 81 clarifies the definition of “state” to include not only the District of Columbia but also any United States commonwealth or territory.

For up to date information regarding the effect of these changes on litigation practice, see the following SmartRules Guides:  Regarding Rule 13, Counterclaims and Cross-Claims.  Regarding Rule 15, Amended Complaint and Amended Answer.  In addition to the links to the SmartRules Guides provided here, SmartRules Guides provide coverage for the most commonly filed litigation documents in most United States District Court jurisdictions.

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