Preliminary Draft
of
Proposed Amendments
to the
Federal Rules
of
Practice and Procedure
 

Submitted for Public Comment

Comments Due by February 15, 2000
 
 

Administrative Office of the U. S. Courts

Leonidas Ralph Mecham, Director
 
 

A Summary for Bench and Bar
(AUGUST 1999)
 
 
 

Request for Comment on Proposed
Amendments to the Federal Rules
of Practice and Procedure


 


The Judicial Conference's Advisory Committees on the Bankruptcy Rules and Civil Rules have proposed amendments to various rules and are seeking public comment on the proposed changes.
The Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee) has not approved these proposals but submits them for public comment. The proposals have not been presented to the Judicial Conference or the Supreme Court.
The full text of the proposed rules amendments and explanatory Committee Notes are set out in the Request for Comment pamphlets, which are posted on the Internet at <www.uscourts.gov> and are available on request from the Secretary to the Rules Committee. The synopsis on the following pages highlights the major aspects of the proposed Bankruptcy and Civil Rule amendments. The synopses are intended to stimulate greater public comment and participation in the rulemaking process. The synopses are largely drawn from the committees' reports, which are also set out in the Request for Comment pamphlets.
The rules committees welcome all comments, whether favorable, adverse, or otherwise. All comments from the public on these proposals will be considered individually and carefully by the respective rules committees, which consist of experienced trial and appellate lawyers, scholars, and judges.
Written comments or comments sent electronically must be received by the Secretary to the Rules Committee no later than February 15, 2000. As part of a two-year pilot project, comments may be sent electronically via the Internet at <www.uscourts.gov>.
An opportunity is also provided to the public to appear at scheduled public hearings to testify regarding the proposals. Requests to appear at a public hearing must be received by the Secretary to the Rules Committee no later than 30 days prior to the scheduled date for the public hearing. Information on the Secretary's mailing address and the dates and places of the scheduled public hearings is set out at the end of this brochure.
Under the proposed schedule, the rule amendments would become effective on December 1, 2001, or later if -- following the public comment period -- they are in turn approved, with or without revision, by the relevant advisory committee, the Standing Committee, the Judicial Conference, and the Supreme Court, and if they are not altered by Congress.

I. Proposed Amendments to the Federal Rules of Bankruptcy:

(A) Rule 1007 is amended to require a debtor to include in the list of creditors and schedules the name, address, and legal relationship of any representative upon whom process would be served in an adversary proceeding against a creditor who the debtor knows is an infant or incompetent person.

(B) Rule 2002(c) is amended to ensure that a party entitled to notice of a hearing on confirmation of a plan is given adequate notice of any injunction included in the plan that would enjoin conduct not otherwise enjoined by the Bankruptcy Code.

(C) Rule 2002(g) is amended to clarify that when a creditor or indenture trustee files a proof of claim which includes a mailing address and a separate request designating a different mailing address, the last paper filed determines the proper address, and a request designating a mailing address is effective only with respect to a particular case. The amendments also clarify that a filed proof of claim is considered a request designating a mailing address if a notice of no dividend has been given under Rule 2002(e), but has been superseded by a subsequent notice of possible dividend under Rule 3002(c)(5). A new paragraph has been added to ensure that notices to an infant or incompetent person are mailed to the person's legal representative identified in the debtor's schedules or list of creditors.

(D) Rule 3016 is amended to ensure that entities whose conduct would be enjoined under a plan, rather than by the Bankruptcy Code, are given adequate notice of the proposed injunction by specific and conspicuous language in the plan and disclosure statements.

(E) Rule 3017 is amended to ensure that entities whose conduct would be enjoined under a plan -- but who would not ordinarily receive copies of the plan and disclosure statement or information regarding the confirmation hearing because they are neither creditors nor equity security holders -- are provided with adequate notice of the proposed injunction, the confirmation hearing, and the deadline for objecting to confirmation of the plan.

(F) Rule 3020 is amended to require notice in an order of confirmation to an entity subject to an injunction provided for in a plan against conduct not otherwise enjoined by the Bankruptcy Code. The amendment requires that notice of entry of the order of confirmation be mailed to entities subject to the injunction.

(G) Rule 9006(f), which is similar to Civil Rule 6(e), provides an additional 3 days to act when a party is served by mail. Rule 9006(f) is amended to expand the 3-day rule to apply to any method of service, other than service by personal delivery -- including service by electronic means authorized under proposed amendments to Civil Rule 5(b). (The Civil Rules Committee preliminarily concluded not to extend the 3-day rule to electronic service, but it is seeking comment on whether the 3-day rule should be extended in a proposed amendment of Civil Rule 6(e).)

(H) Rule 9020 is amended to delete provisions that delay for 10 days the effectiveness of an order of civil contempt issued by a bankruptcy judge and render the order subject to de novo review by the district court. Other procedural provisions in the rule are replaced with a statement that a motion for an order of contempt made by the United States trustee or a party in interest is governed by Rule 9014 (contested matters).

(I) Rule 9022(a) is amended to permit, under a local rule, the clerk to serve notice of entry of a judgment or order of a bankruptcy judge by any method of service, including service by electronic means, permitted under the proposed amendments to Civil Rule 5(b).

II. Proposed Amendments to the Federal Rules of Civil Procedure:

(A) Rule 5(b) is amended to authorize service by electronic means or any other means not listed in Rule 5(b)(2)(A-C), but only if consent is obtained from the person served. It applies only to service made under Rules 5(a) and 77(d), and not to service of initial process under Rule 4. (Under Criminal Rule 49(b), the rules governing service in a civil action apply to criminal proceedings. Accordingly, any change in the procedures governing service in a civil action would simultaneously alter the rules governing service in a criminal proceeding.)

(B) Although the committee preliminarily concluded that the 3-day rule should not be extended to electronic service, it is asking for comment on whether Rule 6(e) should be amended to extend the 3-day rule to electronic service. (The Bankruptcy Rules Committee preliminarily reached an opposite conclusion and is affirmatively proposing an amendment to Bankruptcy Rule 9006(e), which would extend the 3-day rule to any method of service other than personal delivery.)

(C) Rule 65 is amended by adding a new subdivision (f) that explicitly brings copyright impoundment procedures within Rule 65 injunction procedures.

(D) Rule 77(d) would be amended to permit, under a local rule, the clerk of court to give notice of the entry of an order or judgment by any means authorized by Rule 5(b). By invoking Rule 5(b), electronic or other non-mail means could be used only with the consent of the person receiving notice.

(E) Rule 81 is amended primarily to conform with the proposed abrogation of the Copyright Rules of Practice.

(F) The Copyright Rules of Practice are abrogated. Most lawyers, including many copyright lawyers, do not know that an independent set of Copyright Rules of Practice seems to persist to this day. The rules primarily deal with one subject only -- the procedure for seizing and holding, before judgment, "alleged infringing copies, records, plates, molds, matrices, etc., or other means of making the copies alleged to infringe the copyright." The rules were adopted under the 1909 Copyright Act and do not account for the inconsistent provisions enacted by the 1976 Copyright Act, nor do they conform to modern concepts of due process established by supervening caselaw. The abrogation of the copyright rules and the procedures proposed under amendments to Civil Rules 65 and 81 are consistent with current practices of the courts. The proposed changes would eliminate the concerns that the rules may be invalid and will help ensure that the impoundment procedures necessary to police copyright infringements are in compliance with international standards. In particular, under the procedures contained in Rule 65(b), impoundment may still be ordered on an ex parte basis if the applicant makes a strong showing of the reasons why notice is likely to defeat effective relief.

Public hearings are scheduled to be held on the amendments to

Those wishing to testify should contact the Secretary at the address below in writing at least 30 days before the hearing.

All written comments on the proposed rule amendments should be mailed to:

Peter G. McCabe, Secretary
Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544

Comments on the proposed rule amendments may also be sent electronically via the Internet at <www.uscourts.gov >.

In accordance with established procedures all comments submitted
on the proposed amendments are available to public inspection.

The text of the proposed rule amendments and the accompanying Committee Notes can be found at the United States Federal Courts' Home Page at <www.uscourts.gov> on the Internet. For further information, copies of this brochure, the Request for Comment pamphlets, and other materials, contact:

John K. Rabiej, Chief
Rules Committee Support Office
Administrative Office of U. S. Courts
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544
(202) 502-1820