During the height of pandemic chaos, federal district courts were left to their own devices to manage docket disruption. This resulted in hundreds of orders across the federal courts, ranging from a handful in one district, to dozens in another. Perhaps hoping to address the ad hoc nature of the judicial branch’s pandemic response, Congress included in the CARES Act an instruction that the Judicial Conference and the Supreme Court “consider rule amendments . . . that address emergency measures that may be taken by the Federal courts when the President declares a national emergency.”
In August 2021, the Judicial Conference’s Advisory Committee responded with a bundle of proposed procedural rule changes. Among these is a brand new Fed. Rule Civ. Pro. 87, investing the Judicial Conference the power to declare a “Civil Rules Emergency” “if it determines that extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, substantially impair the court’s ability to perform its functions.” But while “extraordinary circumstances” covers a wide spectrum of catastrophes, the modifications of the civil rules accompanying an invocation of Rule 87 are quite narrow: a revision of requirements for service of process under Rule 4, and extension deadlines to file certain post-trial motions and appeals. As to the latter, the scope of the filing extensions is understandable, given that district courts had quite readily entered orders relaxing other filing deadlines, including those set by the Federal Rules of Civil Procedure.
But the proposed amendment of Rule 4 is far broader. During a Civil Rules Emergency, a court may authorize service on certain defendants (including people and companies within the U.S.) “by a method that is reasonably calculated to give notice.” This would be an enormous expansion of a rule that otherwise requires (with one big exception, see below) service to be personally delivered to a defendant, their agent, or at least an adult that happens to be home.
These proposed amendments drew very few comments, and even less attention to new Rule 87. And only one objection, from Lawyers for Civil Justice, which correctly points out that the emergency revisions to Rule 4 “does not seem to require a showing that the methods permitted in normal circumstances under Rule 4 are not feasible.” A court’s discretion would expand “to sign off on speculative methods without any idea whether they would prove effective in light of the circumstances.” The LCJ highlights the due process concerns raised by vague service requirements, and urges the Judicial Committee to drop the revision entirely, or “include safeguards against entry of default judgment,” such as completion of traditional service. The LCJ has a good point – we should avoid vague language around Constitutional rights. Moreover, there’s that exception – current Rule 4 also permits service under the state law of the court’s or defendant’s home turf. And state laws may include a number of substituted service methods now baked into Rule 4. For example, New York permits service by mail and publication. Texas permits service “electronically by social media, email, or other technology.”
Why the Advisory Committee selected Rule 4 for emergency attention is unclear. The Committee praised the courts’ flexibility in addressing COVID disruptions, and writes that “the decision to proceed with Emergency Rules 4 . . . rested on examination of the rules’ texts for barriers to effective action, not on reports of actual problems in practice.” There was no finding that process service had actually been impeded to the detriment of the courts. And evidence suggests otherwise. Servers remained open for business throughout the pandemic. In fact, the Advisory Committee questioned whether Rule 87 was necessary at all, rather than targeted amendments “that can be revised to adjust for emergency circumstances in ways that reflect the success that most of the Civil Rules have met during the COVID-19 pandemic.” Given such reservations, why start a new rule through the process?
Perhaps the Advisory Committee was hoping to follow public opinion. But the period for comment ended in February, with very little guidance to be had. Hearings before the Judicial Conference will follow next year; it remains to be seen if Rule 87 gains more attention as the courts’ slow reopening continue.
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About Adam Steinfeld
Adam Steinfeld is a Partner in Faruqi & Faruqi, LLP's New York office. He practices in the area of antitrust litigation with a focus on competition in the pharmaceutical industry. Mr. Steinfeld has litigated successfully with significant contributions in In re Buspirone Patent & Antitrust Litigation, MDL No. 1410 (S.D.N.Y.) ($220M settlement); In re Cardizem CD Antitrust Litigation, No. 99-MD-1278 (E.D. Mich.) ($110M settlement); In re Relafen Antitrust Litigation, No. 01-12239 (D. Mass.) ($175M settlement); In re Remeron Direct Purchaser Antitrust Litigation, No. 03-cv-0085 (D.N.J.) ($75M settlement); In re Terazosin Hydrochloride Antitrust Litigation, No. 99-MDL-1317 (S.D. Fla.) ($72.5M settlement); In re Tricor Direct Purchaser Antitrust Litig., No. 05-340 (D. Del.) ($250M settlement); and Mylan Pharms., Inc. v. Warner Chilcott, No. 12-cv-3824 (E.D. Pa.) ($12 million settlement).
Adam Steinfeld
Partner at Faruqi & Faruqi, LLP
New York office
Tel: (212) 983-9330
Fax: (212) 983-9331
E-mail: asteinfeld@faruqilaw.com
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