When calculating deadlines in federal court, most attorneys are familiar with the “mailbox rule” (Federal Rule of Civil Procedure 6(d)). Until recently, the “mailbox rule” provided respondents with an additional three days to respond to pleadings and discovery that were served via e-mail, via the federal court’s e-file system, or via traditional “snail mail” options. Prior to the advent of e-mail and e-filing, the original purpose of the rule was to provide some breathing room for respondents in case there was an issue with delivery of pleadings and discovery via “snail mail.”
In 2001, the Federal Rules of Civil Procedure were amended to add e-filing and e-mail to the types of service that received the benefit of the “mailbox rule.” This was done, presumably, to account for technological difficulties in transmitting pleadings electronically as courts transitioned from paper filing to electronic filing. According to the Advisory Committee’s notes, “[t]here were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments.” As technology advanced, this rule seemed like another instance where the legal profession had failed to keep up with the modern world with respect to technology.
In 2016, the legal profession made a great leap forward when the Federal Rules of Civil Procedure were amended again, this time to remove electronic service (either via e-file or e-mail) from FRCP 6(d). Accordingly, when responding to a pleading served via e-mail or the court’s e-file system, respondents are no longer entitled to an extra three days.
The current version of FRCP 6(d) reads as follows:
(d)Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).
A few helpful notes:
A similar change was made to Federal Rule of Appellate Procedure 26. Also, Bankruptcy courts apply the Federal Rules of Civil Procedure in Adversary Proceedings, so this change should be noted for Bankruptcy practitioners.
Finally, some, but not all, states have made similar changes to their civil procedure rules. Georgia has not updated the Civil Procedure Act’s guidelines. Litigants in Georgia courts are currently still entitled to the benefit of the extra three days under the “mailbox rule” when responding to a pleading that was served via mail or e-mail. O.C.G.A. § 9-11-6(e).
Navigating the procedural rules of the federal court system can be confusing for inexperienced litigants. If you have been served with a pleading in a federal court case and you have questions about your response deadline, it would be prudent to consult an experienced attorney as quickly as possible.
Katherine Silverman is a business litigator with a unique depth of experience in handling commercial real estate disputes.