United States: Federal Rule Changes To Impact Timing Requirements, Indicative Rulings, Summary Judgments And Amending Of Pleadings

Many of the Federal Rules of Civil Procedure ("F.R.C.P.") will effectively change by the end of 2009, including provisions that impact timing requirements, indicative rulings, summary judgment and amending of pleadings. The Judicial Conference of the United States—through its Time-Computation Subcommittee and Appellate, Bankruptcy, Civil, and Criminal Rules Advisory Committees—issued proposed amendments to the Federal Rules of Civil Procedure, which the U.S. Supreme Court approved on March 26, 2009, to be effective on December 1, 2009. In addition, the Civil Rules Advisory Committee of the Judicial Conference of the United States has proposed recommendations to amend F.R.C.P. Rule 26 in 2010, with respect to discovery of expert witnesses and expanded work-product protections.

Rule 6(a): "Time-Computation Project"

When word came down that the timing requirements of 91 provisions of the F.R.C.P. were set to change on December 1, 2009, it likely generated a collective sigh of relief from law firms, both big and small. Under the new "days are days" approach, calculating deadlines will become far less difficult. Lawyers no longer have to determine whether to include or exclude weekends, or which holidays are considered as such, when calculating federal court deadlines. Until now, such issues have, at times, caused discrepancies between court clerks' calculations and those of the lawyers.

As part of an overall "Time-Computation Project," F.R.C.P. 6(a), which is the rule that governs computing and extending time, has been modified to make the method of computing time consistent and clear. Presently, the computation of rules involving periods under 11 days are typically different than those for longer periods—intermediate weekends and holidays are usually omitted when computing shorter periods, but included for longer periods. This discrepancy has led to unnatural results, as it has not been uncommon for a 10-day period and a 14-day period that began the same day to also end on the same day due to intervening weekends and holidays.

Under the revised counting rules, intermediate weekends and holidays will be counted, regardless of the length of the specified counting period. A notable exception is when the counting period ends on a weekend or legal holiday, in which case, the deadline falls on the next business day that is neither a weekend nor a legal holiday. To compensate for the new time-computation methods, the Advisory Committee of the Judicial Conference of the United States reviewed every rule to make sure that shorter deadlines would still be reasonable. To that end, most five-day deadlines will be extended to seven days and most 10-day deadlines will be extended to 14 days. The revised rules also implement seven-, 14-, 21- and 28-day periods as often as possible—so that deadlines will almost always fall on weekdays.

F.R.C.P. 6 will include a new subdivision (a)(2), which deals with the computation of time periods that are measured in hours. These deadlines begin to run immediately on the occurrence of an event and will naturally end when the allotted time expires. If the period ends on a weekend or legal holiday, however, the deadline is extended to the same time on the first business day that is not a weekend or legal holiday. For example, if a deadline is set to expire at 11:23 a.m. on a Saturday, it will actually expire at 11:23 a.m. on the following Monday. Another new provision has been added to address the timing of electronic filings: In the absence of a statute, local rule or court order providing otherwise, the last day of a period for an electronic filing ends at midnight—giving litigators who are pressed for time a few extra hours of leeway.

Although most of the deadline changes are minor, a couple of revisions are important to note. First, the deadlines for a Rule 50(b) renewed motion for judgment as a matter of law, a Rule 52 motion for amendment of the court's findings, and a Rule 59 motion for a new trial will be extended from 10 days to 28 days. These extensions flow from the recognition that the existing time lines are too short. The increased time to file such motions is intended to provide ample time to prepare satisfactory and complete post judgment motions.

Second, the timing provisions in Rules 56(a) and (c) have been replaced by new provisions that will allow a motion for summary judgment to be made at any time, from as early as the commencement of the action until 30 days after the close of discovery, unless a local rule or court order provides otherwise. If a motion for summary judgment is filed before a responsive pleading is due from the nonmoving party, the nonmoving party has 21 days after the responsive pleading is due to respond to the motion. The Advisory Committee noted that although the rule establishes the default-timing deadlines, those deadlines may be altered by court order or by local rule—and in most cases, are likely to be superseded by scheduling orders.

Significant Non-Time-Computation Amendments

Proposed F.R.C.P. 62.1 is an entirely new provision that codifies the common practice of indicative rulings presently followed in many circuits, although in differing formats. Indicative rulings arise when a motion is made on a matter that the district court is in a better position to decide than the court of appeals, but the district court may not rule because an appeal has been filed. Rule 62.1 will allow the district court to defer ruling, deny the motion, or either indicate that it would be inclined to grant the motion if the case were remanded or state that the motion raises a substantial issue. This situation typically arises when a party files a Rule 60(b) motion to vacate a judgment after an appeal has been filed.

The use of indicative rulings can alleviate the squandering of judicial resources, but the Advisory Committee noted that it has been underutilized due to a lack of awareness. The enactment of Rule 62.1 is intended to make the practice of indicative rulings consistent where it is presently used and make more litigants and judges aware of its existence where it is not.

Although Rule 62.1 applies only when an appeal deprives the district court of authority to grant relief without appellate permission, the rule does not attempt to define the circumstances in which that occurs. To facilitate cooperation between the district courts and the courts of appeals and enable them to determine whether it is better to decide the appeal before deciding the motion, new Federal Rule of Appellate Procedure 12.1 has been added to work in tandem with Rule 62.1. Rule 12.1 facilitates remand for a ruling on a motion if the district court has indicated that the motion raises a substantial issue or that the district court would grant the motion if the court of appeals remanded for that purpose.

Another key change will be ushered in under F.R.C.P. 15, which governs the right to amend a pleading as a matter of course. Under the existing language of Rule 15(a), the right to amend a pleading to which a responsive pleading was required depended on whether a responsive pleading or an F.R.C.P. 12 motion had been served—a responsive pleading terminated the right to amend as a matter of course, whereas a motion did not. Under the revised version of F.R.C.P. 15, that distinction has been abandoned. A party will now have 21 days to amend once as a matter of course after an F.R.C.P. 12(b), 12(e) or 12(f) motion and the associated responsive pleading. However, the periods are not cumulative and, if a responsive pleading is served after a motion, no new 21-day period commences. Leave to amend can still be sought under Rule 15(a)(2).

On the Horizon: 2010 Changes

The Civil Rules Advisory Committee of the Judicial Conference of the United States has recommended two significant additional changes to the Federal Rules of Civil Procedure for adoption in 2010. First, changes are proposed to F.R.C.P. 26, which would impact the discovery of expert witnesses. Currently, testifying witnesses are required under F.R.C.P. 26(a)(2)(B) to provide a written report detailing the expert's expected opinion and the basis for it, only if the expert is "retained or specially employed to provide expert testimony" or if the expert's duties "regularly involve giving expert testimony." Testifying experts outside of these two categories are exempt from filing a detailed written report, an exemption that the 2010 proposal would continue. Proposed F.R.C.P. 26(a)(b)(C), however, would require testifying experts that are exempt from F.R.C.P. 26(a)(2)(B)'s requirements to disclose both the subject matter of their testimony and a summary of facts and opinions to which the expert will testify.

The other substantial proposed change to F.R.C.P. 26 will extend work-product protection to drafts of the new (a)(2)(C) disclosure as well as (a)(2)(B) expert reports. Additionally, in recognizing the need for full and complete communication between an attorney and the expert, the new rule will extend work-product protection to all communications between an attorney and an expert, unless the communication falls into one of three categories: (1) communications about the expert's compensation; (2) communications of facts and data that the party's attorney has provided and that the expert considered in forming his opinions; and (3) assumptions provided by the party's attorney to the expert upon which the expert relied in forming his opinion.

Another significant change scheduled for 2010 is to F.R.C.P. 56, which would be completely revamped to bring the rule up to date with current practice, without changing the underlying summary judgment standard. Under current practice, courts routinely grant partial summary judgment or grant summary judgment outside of a motion for summary judgment, even though neither procedure has support in the present text of F.R.C.P. 56. The new rule would allow a court—after giving parties notice and a reasonable time to respond—to grant summary judgment for a nonmovant, grant the motion on grounds not raised by the parties or "consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute." The new rule would additionally provide textual support for the common practice of partial summary judgments under subdivision 56(a). The committee has noted that the underlying standard would not be changed, and that the overhaul of Rule 56 "will not affect continuing development of the decisional law construing and applying these phrases."

If you have any questions regarding the upcoming changes to the Federal Rules of Civil Procedure or would like more information, please contact any member of the Trial Practice Group or the attorney in the firm with whom you are regularly in contact.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets.

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 Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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