United States: Change Is Coming! (To The Federal Rules Of Civil Procedure)

Effective December 1, important changes are coming to the Federal Rules of Civil Procedure, including:

  • Eliminating the certificate of service for ECF-filed materials;
  • Mandating electronic service and filing, including of complaints, for persons represented by counsel;
  • Establishing a national signature standard for electronic filing systems; and
  • Updating the class action rule, with a focus on proposed class settlements.

Changes to the appellate, criminal, and bankruptcy rules are also going into effect. In large part these changes conform the respective rules to the updated FRCP. The following focuses primarily on the changes to the FRCP.


On December 1, multiple amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure (FRAP, FRBP, FRCP, and FRCrP respectively) go into effect. Due to the changes to the federal rules, local rules may be revised as well. For example, the Eastern District of Virginia, Eastern District of North Carolina, and Northern District of New York, among others, have pending amendments to their local rules.

Electronic Filing, Service, and Signature Requirements

Say goodbye to certificates of service. In perhaps the most impactful amendment to FRCP, the amended 5(d)(1) provides that no certificate of service is required when a paper is served though the court's e-filing system. For documents filed but not served via the e-file system, a certificate of service must be provided within a reasonable time after service. These amendments also eliminate the requirement to obtain consent for electronic service when papers are served, using the court's e-filing system, on registered users of that system.

The amendment of FRCP 5(d)(1) mandates electronic filing of materials, including complaints, by represented persons. The new rule permits exceptions for good cause or for local rules that allow or require nonelectronic filing. The new rule also permits a court to allow pro se litigants to use electronic filing by order or local rule. (Pro Tip: Avoid the humiliation of having a paper complaint filing bounced by the clerk. Be sure to check your local rules for any deviation from the new e-filing requirement.)

The new FRCP 5(d)(3)(C) sets forth a national signature provision for papers filed using the e-filing system. The key takeaway is that an electronic signature requires an authorized filing through a person's e-filing account, together with the same person's name on a signature block. The amended rule does not provide detail on what information is required to be in the signature block. (Pro Tip: The electronic signature must match the account being used for the filing.)

Class Action Changes

Another significant change comes to FRCP 23, governing class action cases. The proposed rule amends the methods of notice to (b)(3) class members to include "electronic means, or other appropriate means." (Pro Tip: This update will allow notice to be given by email, or possibly even text message, which could be especially important in class action cases when limited contact information is known about potential class members.) The proposed rule also amends subsection (e) to require additional information to determine whether to give notice of the proposed settlement to the class. If the court determines that it's able to both "approve the proposal under Rule 23(e)(2)" and "certify the class for purposes of judgment," the court will direct notice to all class members who would be bound by the settlement.

Amendments to subsection (e) expand on the "fair, reasonable, and adequate" evaluation currently applied to class settlements by providing factors for courts to consider when evaluating proposed settlement agreements.

A final amendment to subsection (e) requires additional specificity when objecting to a proposed settlement agreement. Further, it requires court approval for payment in connection with foregoing or withdrawing a challenge to a proposed settlement. The amendments also clarify that a decision to send notice of a proposed settlement to the class under FRCP 23(e)(1) is not appealable under FRCP 23(f).

Modernized Language – Replacement of "Supersedeas Bond"

FRCP 62 and FRCP 65.1 are being updated to replace the term "Supersedeas Bond" with "bond or other security." The change also extends the automatic stay to enforce a judgment to 30 days.

Changes to the Bankruptcy, Appellate, and Criminal Rules

Most of the changes to the bankruptcy, appellate, and criminal rules conform the rules to the updated FRCP. For example, FRAP 25 and 26 and FRBP 5005 and 8011 were amended to conform to the changes in FRCP 5 discussed above. Further, FRCrP 45 was amended to remove reference to FRCP 5 and FRCrP 49 was written anew, outlining service requirements for criminal cases. The appellate and bankruptcy rules were also amended to replace "Supersedeas Bond." In addition to conforming and related changes, there are several unique amendments, which are discussed below.

Home Mortgage Changes in Chapter 13 Bankruptcy

FRBP 3002.1, which applies to Chapter 13 home mortgage claims and underwent significant changes in 2016, is being amended again. First, the change provides flexibility for payment change notices ("PCNs") on home equity lines of credit ("HELOCs") by allowing the notice requirements to be amended by court order. This is an important change for loan servicers with HELOCs in their portfolio as the default rule requires a PCN at least twenty-one (21) days before the new payment amount is due. This can become an especially onerous requirement for HELOC servicers, as HELOCs often have minor monthly payment changes. Filing motions for a modified notice requirement in all (or most) Chapter 13 cases with HELOCs will also be burdensome, but provides some relief for HELOC servicers.

Second, the new rule creates a procedure for objecting to PCNs. The new objection process allows a payment change, noticed by a timely-filed PCN, to go into effect if no objection is filed by the day the new amount is due, unless ordered otherwise by the court. This change provides certainty to mortgage servicers by allowing them to rely on a PCN when an objection is not filed prior to the new payment amount becoming effective.

Third, a final change to FRBP 3002.1 amends subsection (e) to expand the parties who may file a motion for determination of fees, expenses, or charges. The new rule allows a motion by party in interest, rather than only the debtor or trustee as permitted by the previous version of the rule.

Other Bankruptcy Rule Amendments

FRBP 8002, 8011, 8013, 8015, 8016, 8017, and 8022 were amended, and a new appendix (Part VIII Appendix) was added, to conform to changes to the FRAP, which went into effect December 1, 2016. These changes include inmate filing provisions, changes to time limit references (from page limits to word count limits), and updates to timing and length requirements for amicus briefs. The new Part VIII Appendix collects all the page-to-word limit changes in a single table. The changes also incorporate a new limitation to amicus briefs, which is discussed in the appellate section below.

Finally, a new bankruptcy rule, 8018.1, authorizes a district court to treat a judgment of a bankruptcy court as proposed findings of fact and conclusions of law when the court finds the bankruptcy court lacked constitutional authority to enter a final judgment.

Appellate Changes

As mentioned above, a new limit is being placed on briefs of amicus curiae. FRAP 29 was amended to limit briefs of amicus curiae that would result in a judge's disqualification and gives federal courts of appeals authority to strike or prohibit such amicus briefs. While several courts of appeals previously had local rules in place containing this restriction, the amendment makes this rule applicable to all federal courts of appeals.

FRAP 28.1 and 31 were amended to extend the time to file an appellate reply brief to 21 days. Further, FRAP 41 was amended to require an order to stay a mandate and provides that a mandate stayed pending a petition for certiorari must issue immediately upon certiorari denial.

The Troutman Sanders' Consumer Financial Services Law Monitor blog offers timely updates regarding the financial services industry to inform you of recent changes in the law, upcoming regulatory deadlines and significant judicial opinions that may impact your business. To view the blog, click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions