TO: Joint Procedure Committee
FROM: Andy Forward
DATE: January 14, 2010
RE: 2009 Amendments to the Federal Rules
The Appellate, Civil, and Criminal Rules Advisory Committees proposed amendments to the federal rules, which became effective on December 1, 2009. What follows are excerpts from the Judicial Conference Reports, which explain the amendments.
The Advisory Committee on Appellate Rules submitted amendments to Rule 4 and new Rule 12.1.
Rule 4 - Appeal - When Taken
The amendment to Rule 4(a)(4)(B)(ii) changes the phrase “judgment altered or amended” to “judgment’s alteration or amendment.” The amendment eliminates an ambiguity arising from the 1998 restyling of the rule, which might be construed to require an appellant to amend a notice of appeal filed before a district court amends the judgment, even if the amendment favors the appellant. North Dakota’s Rule 4(a)(3)(B)(ii) has identical language.
Rule 12.1 - Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal
New Rule 12.1, which is coordinated with new Civil Rule 62.1, provides a clearly stated and consistent procedure for a party to request an “indicative ruling” on a motion that the district court lacks authority to grant because of a pending appeal. Many courts follow a variation of this practice but there is no clear or consistent statement in the rules. The new appellate rule facilitates the remand to the district court for a ruling on the motion when the district court has indicated that it would grant the motion if the court of appeals remanded for that purpose or that the motion raises a substantial issue. The procedure ensures proper coordination of proceedings dealing with indicative rulings in the district court and court of appeals. Unless the court of appeals expressly dismisses the appeal, it retains jurisdiction despite the remand and may consider the appeal even after the district court has granted relief on remand. The proposed new rule is integrated with new Civil Rule 62.1.
The Advisory Committee on Civil Rules submitted amendments to Rules 13(f), 15(a), 48(c), and 81(d), and new Rule 62.1.
Rule 13 - Counterclaim and Crossclaim
The amendment to Rule 13 deletes subdivision (f), which sets out standards for amending pleadings to add a counterclaim. The subdivision is redundant of Rule 15, which sets out standards for amending pleadings in general. The change codifies courts’ practice of applying uniform standards to the amendment of pleadings. North Dakota’s Rule 13(f) is identical to former Fed.R.Civ.P. 13(f).
Rule 15 - Amended and Supplemental Pleadings
The amendment to Rule 15(a)(1)(A) and (B) limits the time when a party may amend a pleading to which a responsive pleading is required once as a matter of course. The amendment eliminates the distinction drawn by present Rule 15(a), under which a responsive pleading immediately cuts off the right to amend, while a Rule 12 motion does not cut off the right and prolongs the time to amend a pleading until the motion is resolved. Significant problems can arise when a party files an amended pleading as a matter of right on the eve of a court’s ruling on a dispositive Rule 12 motion. Under the amendment, a party may file an amended pleading without leave of court within 21 days after service of a responsive pleading or 21 days after service of a Rule 12 motion, whichever is earlier. After that, a party may file an amended pleading only with leave of court. North Dakota’s Rule 15 is very similar to Fed.R.Civ.P. 15.
Rule 48 - Number of Jurors; Verdict
The amendment to Rule 48 adds a provision similar to that in corresponding Criminal Rule 31 that allows a court to poll the jury individually on its own and requires a poll at a party’s request. The language of the amendment is very similar to the language of N.D.R.Crim.P. 31(d).
Rule 62.1 - Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal
New Rule 62.1 is integrated with the parallel proposed new Appellate Rule 12.1. Rule 62.1 codifies and makes consistent practices followed in almost all circuits when a motion is made regarding a matter that the district court is in a better position to determine than the court of appeals, but the district court judge cannot rule on the motion because an appeal has been filed and jurisdiction invested in the court of appeals. The district court may defer ruling, deny the motion, or either indicate that it would be inclined to grant the motion if the case were remanded (the so-called indicative ruling) or state that the motion raises a substantial issue. Requests for indicative rulings typically arise when a party files a Rule 60(b) motion after an appeal has been filed. The procedure facilitates cooperation between the district court and the court of appeals, enabling them to determine whether it is better to decide the appeal before deciding the motion. A party must notify the court of appeals if the district court states that it would grant the postjudgment motion or that the motion raises a substantial issue.
Rule 41 - Search and Seizure
The amendment to Rule 41(e)(2)(B) and (f)(1)(B) clarifies how the rule’s warrant provisions apply to the seizure of electronically stored information. It sets up a two-stage process, authorizing the seizure of electronic storage media or the seizure and copying of electronically stored information and a subsequent review of the storage media or electronically stored information consistent with the warrant. No specific time period is imposed on any off-site review of the media or electronically stored information because the review time can be substantial, depending on the volume of information and the presence of hidden “traps” or encrypted data. A judge may impose a specific deadline, however, for the return of the storage media or access to the electronically stored information when the warrant is issued. Under the amendment, the inventory describing the electronically stored information may be limited to a description of the physical storage media seized or copied.
North Dakota’s rule is set up different from the federal rule, but contains similar language.
A copy of the changes to the federal rules is attached.