The Fuse Just Got Shortened: Fewer Days for Service in Federal Court

October 29, 2015

This image is the property of PRESENTERMEDIA and is used here by license granted to the author

This image is the property of PRESENTERMEDIA and is used here by license granted to the author

This is the fourth in a series of articles where the authors of the Federal Civil Rules Handbook – Steve Baicker-McKee and Bill Janssen – discuss some of the more significant amendments to the Federal Rules of Civil Procedure that take effect in less than two months’ time.  The newest edition of the Federal Civil Rules Handbook (available November 2015) offers detailed commentary on each of the coming amendments, and other important recent changes in federal civil practice. 


 

It is not always easy to obtain an extension of time for serving process in federal court.  And missing that deadline can be case-ending, spelling a potential career catastrophe.  All of which prompted the late, distinguished Third Circuit jurist, Hon. Joseph F. Weis, Jr., to caution federal litigants that the lesson, here, “is not to take any chances,” but to treat the service deadline “with the respect reserved for a time bomb.”

Effective December 1, 2015, that time bomb’s fuse gets shortened by 30 days.  Beginning on that date, service must be accomplished within 90 days from filing (reduced from the 120-day period that has prevailed for many years).  Recall, also, that the verb in this Rule 4(m) is “must” – if, absent good cause, service is not made within that 90-day window, the court “must” dismiss without prejudice or direct a specific new date by which service must be completed.  Neither of these two caveats should give practitioners much comfort: a without-prejudice dismissal is hardly welcome if the limitations period has expired in the meantime, and the hope for a revised service date always hinges on convincing the trial judge of the fairness in doing so.

Federal Civil Rules HandbookFor lawyers who must serve process, this one-quarter reduction in service time can be truly significant.  First, as many can attest, finding a defendant and then effecting service can prove a time-consuming, labor-intensive chore (even when the defendant isn’t evading service).  Second, this is unquestionably a “chore”, and oftentimes gets relegated – dangerously so – to the bottom of the “to-do” (or “to-confirm”) list.  Third, the waiver-of-service option gets dicey; because a defendant must have at least 30 days to consider whether to waive or not, the time remaining to complete formal service of process can become very tight if the defendant refuses.  Consider, for example, a waiver request mailed three weeks after filing, with the defendant told to respond within 30 days.  Nothing is received on that 30th day, but the plaintiff does nothing for another week (considering, perhaps, a mail delay might explain the lack of response).  By now, 60 of the permitted 90 days have passed, and the plaintiff has only 30 days left to scramble to engage a process-server, endure the unpredictability of actual service snafus, and then hope that proper service occurs in time.  There could be a lot of nervous, fingernail biting along the way.

Note, two exclusions apply: the new 90-day deadline does not apply to service in a foreign country (Rule 4(f) or 4(j)(1)) or to certain condemnation of property proceedings (Rule 71.1(d)(3)(A)).

The Amendment’s objective in shortening this time period is to reduce delay at the beginning of litigation.  But the Amendment also recognizes that bona fide requests for extensions of time are likely to be more frequent.  The Advisory Committee commentary following this Amendment envisions such extensions may be warranted when a request for waiver fails, the defendant proves difficult to serve, or the U.S. Marshal must serve in an in forma pauperis case.  This commentary, however, is only instructive, not binding, and missing this deadline creates a very clear vulnerability.

Judge Weis’ admonition has never been more apropos – this new 90-deadline is now an even more treacherous time bomb, deserving of even greater attention.