the Trademark Resource for Start-Ups, Business Owners, Marketing Professionals, In-House Counsel, and Attorneys

The 2016 FRCP Amendments: The End of the Email Extension Era

February 27, 2017News & Recent Developments

Picture of Keyboard with Yellow Envelope and Text "FRCP 2016 Amendments"

On December 1, 2016, the 2016 amendments to the Federal Rules of Civil Procedure ("FRCP") went into effect. The 2016 amendments are much simpler and less impactful than the 2015 amendments. In fact, only three rules were amended - FRCP 4, 6, and 82. And of the three rules, the amendments to FRCP 4 and 82 don't so much change anything as they do clarify. The biggest change is the amendment to FRCP 6 that eliminates the three day extension of time for service made electronically (i.e., by email). Waive bye-bye to those three beautiful, precious days.

The 2016 Amendments to Rules 4(m), 6(d), and 82

FRCP 4(m): The 90 Day Rule to Serve Doesn't Apply to Serving a Corporation Outside the U.S.

Not much to see here. FRCP 4(m) requires a plaintiff to serve a defendant within 90 days. The last sentence of FRCP 4(m) already exempted the service of an individual in a foreign country under FRCP 4(f) and the service of a foreign state under FRCP 4(j)(1) from the 90 day rule. The amendment now just adds a specific exemption for the service of a corporation in a foreign country under FRCP 4(h)(2) to the last sentence of FRCP 4(m).

FRCP 6(d): Remember When We Had Extensions for Service by Email?

One day, young lawyers will laugh at the tales told by old lawyers - tales of lawyers getting an extra three days when served by email. Aye laddie, but it's true, that's the way it was.

Anyways ... FRCP 6(d), which provides the extra three days, was amended to delete service made pursuant to FRCP 5(b)(2)(E). So service made electronically no longer gets you an extra three days - whether the service is made by email or through a federal court's electronic case filing (ECF) system, which is also basically email. The rationale? Email is basically instantaneous and reliable so there is no need for an extension anymore.

I always used to take advantage of the extra three days, so I, for one, will miss the good ol' days.

FRCP 82: A Non-Substantive Amendment That Doesn't Impact Trademark Cases

I don't think that I've cited or relied on FRCP 82—ever. In any event, FRCP 82 consists of two sentences. The first sentence generally states that the Federal Rules of Civil Procedure are not jurisdictional rules. However, this sentence has not been amended. It's the second sentence, which relates to admiralty and maritime claims that has been revised to properly reference 28 U.S.C. § 1390 instead of the repealed § 1392. Obviously, this amendment does not affect trademark litigators (if any of you out there have ever litigated a case involving both admiralty or maritime claims and a trademark infringement claim, email me).

Just a Handy Reference Post If We Ever Need It

I knew I had to take a look at the 2016 amendments to the Federal Rules of Civil Procedure. After reviewing the amendments, I knew there wasn't much to them - and certainly nothing that stood out as impactful for the field of trademark law specifically. On the other hand, trademark litigators - like other litigators - need to be generally familiar with civil procedure. So I decided to throw together a quick and dirty post summarizing the amendments to provide a handy reference that can always be found here on Trademark Well.

Comments on this entry are closed.

Previous post:

Next post: