Three Federal Procedure Answers That You Should Know but Probably Don’t
by Sharon D Stuart, Partner
The Federal Rules of Civil Procedure are our bread and butter. The purpose of the rules is set out in Rule 1: to effect an integrated procedural system, which is vital to make sure that the courts function efficiently. We are expected to have a basic knowledge of the Federal Rules. However, most of us are continually surprised by new things that we learn that were right under our noses—in the rules. While the three pointers below do not substitute for reading the rules, they should help you avoid some common mistakes.
Federal Rule of Civil Procedure 6: How Much Time Do You Really Have to File That Brief?
Accurately computing time and deadlines in our cases is vital to everything that we do. We live and die by our calendars, so we must get it right. This can be tough because the Federal Rules of Civil Procedure are strict, and the manner of computing time may differ between state and federal courts. Nonetheless, Federal Rule of Civil Procedure 6 applies when computing any period of time under the rules, by court order or by any applicable statute that does not specify its own method of computing time.
When computing time, do not count the first day of the period. For example, if an order is entered today, giving us 10 days to file a brief, we start counting tomorrow. However, we do count the last day of the period unless it is a Saturday, Sunday, or legal holiday or weather or other conditions make the clerk’s office inaccessible. If the clerk’s office is inaccessible, the time for filing is extended under Federal Rule 6(a) to the first accessible day that is not a Saturday, Sunday, or legal holiday. See Fed. R. Civ. P. 6 (a) (6) and your local rules for the list of legal holidays.
How do you determine what is truly the “last day” to file your brief? According to Federal Rule 6(a)(4), you should e-file by midnight in the court’s time zone. However, if you are required to file by other means, your brief should be filed no later than when the clerk’s office is scheduled to close. Moreover, how do you properly calculate the “next day” under Federal Rule 6? For the next day after an event, simply count forward until you get to a day that is not a weekend or holiday. But to calculate the next day before an event, such as pre-trial deadlines, you must count backward. The comment to Federal Rule 6(a)(5) directs us always to continue to count in the direction that we are going. Thus, if we are counting backward, and the deadline falls on a Saturday, we need actually to back our deadline up to Friday, the day before. Last, Federal Rule of Civil Procedure 6(d) follows the three-day mail rule: if a party serves a notice or other paper by mail, by leaving with the clerk of court or by other means consented to, add three days to the other party’s time to respond.
Federal Rule of Civil Procedure 8: The Shotgun Pleading
As defense lawyers, we must be quick to identify “shotgun pleadings.” The shotgun pleading incorporates all of the factual allegations into each count without delineating which allegations pertain to each count. This plainly violates Federal Rule of Civil Procedure 8(a)(2). In Jackson v. Bank of America, the Eleventh Circuit held that a shotgun pleading makes it “nearly impossible for [d]efendants and the [c]ourt to determine with any certainty which factual allegations give rise to which claims for relief” and requires the court to act as a plaintiff’s lawyer to analyze and rewrite the complaint into “an intelligible document.” 898 F.3d 1348, 1356–57 (11th Cir. 2018). The court reiterated that the district court has the right to dismiss a shotgun pleading on that basis alone. Id. at 1357. Therefore, even if a defendant does not file a motion to dismiss, the court can dismiss on its own motion, after giving a plaintiff one chance to amend. Id. at 1358. If the plaintiff does not remedy the deficiency in that amendment, the trial court may dismiss the complaint, with prejudice, and may reserve its jurisdiction to award fees and costs. Id. at 1359.
Federal Rule of Civil Procedure 13 and Federal Rule of Civil Procedure 14: Which Applies?
Federal Rule of Civil Procedure 14 applies when a defendant brings in a non-party who is, or may be, liable to it, for all or part of the claim against it. In other words, “It’s not my fault, it’s this other guy’s fault, and if I’m found liable, he’s liable to me.” However, assume that you are a defendant insurance company looking to (1) bring in another potential claimant to the insurance proceeds, or (2) add a tort claimant to a counterclaim for declaratory judgment. How do you do it? The knee-jerk reaction may be to file a third party complaint against the non-party. But is this correct? No. Why? Because Federal Rule 14 makes clear that a third-party complaint is properly brought against a non-party who is, or may be, liable to a defendant. In these two examples, the insurer is not claiming that the tort claimant is liable to it. Rather, the insurance company must join the parties under Federal Rule 19, which requires joinder of certain parties, or Federal Rule 20, which permits joinder of certain parties. The comments to Rule 13 make clear that Rule 13(h) allows a party pleading a counterclaim or cross-claim to join additional persons when Rules 19 or 20 are satisfied.
This article originally appeared in the December 2018 edition of the Defense Research Institute’s (DRI) The Voice. You can find the original article here.