FRCP: Minor Amendment to Rule 4

The Supreme Court has adopted an amendment to FRCP 4(m) that will take effect on December 1, absent action by Congress. Here is the text of the amendment, showing the added and deleted text:

If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. but if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

The amendment makes it clear that Rule 4(m) does not apply to service under Rule 4(h)(2), that is, service on a corporation, partnership, or other unincorporated association “at a place not within any judicial district of the United States.” But Rule 4(h)(2) provides that the method of service to be used in such cases is “any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” So it should have been clear that the ninety-day limit does not apply to service on corporations, etc. abroad. Nonetheless, the Advisory Committee on Civil Rules has noted that the omission of Rule 4(h) creates a “possible ambiguity that appears to have generated some confusion in practice.” I’m not aware of any decisions giving the rule the wrong construction, but the change does clarify the rule in a helpful way.

I am less certain of the rationale for the deletion of the reference to Rule 71.1, the rule governing eminent domain cases, as it’s not discussed in the draft Advisory Committee Note. Perhaps the reference was thought to be superfluous, since FRCP 71.1(d)(3)(A) applies “when a defendant whose address is known resides within the United States or a territory subject to the administrative or judicial jurisdiction of the United States.”

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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