A quick reminder to all federal court practitioners: 2016 just keeps piling it on. Not content to simply let us rest after everything we’ve been through this year, new Federal Rules of Civil Procedure take effect today, and the primary change this time is eliminating the extra 3 days you used to get to respond when something was served electronically.
Out with the old Rule 6(d), and in with the new:
(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).
So, time to change those calendaring rules, or you might blow a deadline.
Rule 4 also got amended a bit as well. Here’s a summary of all the changes taking effect today
Now go back 3 days…
Litigation partner Brian Jones describes the important changes to the Federal Rules of Civil Procedure in this fast-paced video:
Today, the Supreme Court of the United States ruled that unaccepted offers of settlement under Federal Rule of Civil Procedure 68 do not moot a named plaintiff’s claims in a putative class action. In Campbell-Ewald Co. v. Gomez, Justice Ginsburg, writing for the 5-4 majority, held that “an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.”
The majority opinion adopts the reasoning from Justice Kagan’s superbly-written dissent in Genesis HealthCare Corp. v. Symczyk, which all Courts of Appeals have adopted post-Genesis. (If you’ve not read Kagan’s dissent in Genesis, do so now. You’ll be hard pressed to find better legal writing.) Here’s the money quote from Genesis:
When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer— like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law student learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made.’ Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that ‘[a]n unaccepted offer is considered withdrawn.’ So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.
Thus, SCOTUS has now made clear that because a named plaintiff’s individual claim cannot be mooted by an expired settlement offer, “that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class. While a class lacks independent status until certified,…a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.”
To all our friends and readers, we wish you a happy, healthy, and prosperous 2015!