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Editorial 10 MIN READ

A service of process letter in September 2020: the clock that used to be 21 days

The federal answer deadline is unchanged, but the state orders running underneath it have moved in every direction at once

The Editors
Staff, Incorporator.org
10 min read Updated
Contents 6 sections
  1. What the FRCP still says, and what it doesn't
  2. State emergency orders, by category
  3. Email service of process, where it is allowed
  4. Registered agents operating remotely, in practice
  5. What default judgments look like this year
  6. Sources

service of process letter in September 2020 still starts a 21-day answer clock in federal court under Federal Rule of Civil Procedure 12(a)(1)(A)(i), and it still starts one variant of a clock in every state court in the country. What has changed in the last six months is the calendar underneath that clock, and in a handful of states the method by which the letter arrived at all.

The rest of this piece is an updated order of operations for the general counsel, founder, or operations lead opening the envelope this quarter. It tracks our earlier March 2018 piece on the same subject and flags where a pandemic-era reader has to read differently.

What the FRCP still says, and what it doesn't

The federal rule is the first thing to check and the last thing that changed. Rule 12(a)(1)(A)(i) gives a defendant 21 days after being served with the summons and complaint to serve an answer. Rule 12(a)(4) still extends that time if a Rule 12(b) motion is filed. Rule 6(a) still governs computation: exclude the day of service, count every calendar day, and roll a deadline that lands on a Saturday, Sunday, or legal holiday to the next business day.

What Rule 6 does not do is toll itself during a national emergency. The Supreme Court extended the deadline for filing a petition for a writ of certiorari from 90 to 150 days in a March 19, 2020 order, which was a Rule 13 matter, not a Rule 12 matter. Individual federal district courts issued general orders suspending hearings, closing courthouses, and directing clerks to accept filings electronically, and many of those orders signaled that requests under Rule 6(b) for "good cause" extensions would be received sympathetically. None of them moved the 21-day answer clock by fiat. If you are served in federal court this month, the 21 days runs on the calendar you keep, not on whatever is happening in the district's criminal docket.

There is a pending proposal, forwarded by the Judicial Conference, for a new Rule 87 that would give the Conference authority to declare a rules emergency and relax specific rules for a defined period. It has not been transmitted to Congress as of this writing. The CARES Act of March 27, 2020, in Section 15002, authorized emergency use of videoconferencing for certain criminal proceedings, and that is the federal statutory response most general counsels have actually seen. It does not touch civil answer deadlines.

The practical takeaway for a federal-court service-of-process letter in September 2020 is that your client is operating under the same written rule as in September 2019, with a discretionary Rule 6(b) extension available if the business can document a pandemic-specific reason it could not respond on time. Do not assume the extension; ask for it, in writing, from opposing counsel first and from the court if opposing counsel refuses.

State emergency orders, by category

The state side is where the calendar actually moved, and the movement was by executive order or by supreme-court administrative order, not by statute. The orders fall into three loose buckets.

The first bucket is true tolling of civil filing deadlines. New York's Executive Order 202.8, issued March 20, 2020, provided that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state" was tolled from March 20 until April 19, 2020. Governor Cuomo then extended that tolling by a series of executive orders, and the tolling ultimately ran through November 3, 2020, a period of 228 days. Whether "tolled" meant the clock stopped and restarted (the defendant's reading) or the clock ran and the deadline was merely suspended (the plaintiff's reading) was already being litigated by September, and the Appellate Division divisions would not resolve it consistently for months. The prudent reading for a defendant receiving service in New York in September 2020 is to assume the clock is running on the answer deadline and to answer on the ordinary CPLR 3012(a) schedule while preserving any tolling argument in the alternative.

The second bucket is categorical suspension of civil statutes of limitation with defined reopening dates. California's Judicial Council adopted Emergency Rule 9 on April 6, 2020, and amended it on May 29, 2020, to create two tolling windows: civil causes of action with limitations periods longer than 180 days were tolled from April 6, 2020 to October 1, 2020, and those of 180 days or less were tolled from April 6, 2020 to August 3, 2020. Emergency Rule 9 is about when the plaintiff can file; it does not by its terms extend the defendant's answer deadline once service has been effected. California Code of Civil Procedure § 412.20 still gives the defendant 30 days after service to answer. Separately, California's Judicial Council adopted Emergency Rule 12 mandating electronic service of documents among represented parties in general civil actions, which touches the service of subsequent papers but not the initial service of the summons and complaint under Code of Civil Procedure § 415.

The third bucket is all-civil-deadline tolling by the state's high court. The Supreme Court of Texas issued a series of emergency orders beginning in March 2020; its Eighth Emergency Order, filed April 1, 2020, tolled deadlines for the filing and service of civil cases that fell between March 13 and June 1, and later orders extended that window into September. These are the orders to read carefully if service arrives in Texas this month, because the Texas Rule of Civil Procedure 99 "Monday after 20 days" formula interacts with the emergency tolling in ways that only the order itself resolves.

The pattern across the country is the same: the state high court or the governor issued an order, the order was extended several times, the dates of the extensions did not align across states, and the scope of what was tolled (statutes of limitations, filing deadlines, service deadlines, answer deadlines) varied from order to order. The only reliable move is to pull the current order for the state of service and read it with the summons in front of you.

Email service of process, where it is allowed

A summons in September 2020 is more likely to have arrived in an unusual way than a summons in September 2019. Traditional service on a corporation or LLC still runs through the registered agent under the state statute (for example, 8 Del. C. § 321 for Delaware corporations and 6 Del. C. § 18-105 for Delaware LLCs), and that channel has kept working, because commercial registered agents kept Delaware offices staffed as an essential business and forwarded by overnight carrier and email scan.

What is new is authorized email service in narrower contexts. The Massachusetts Supreme Judicial Court's March 30, 2020 order on email service under Rule 5(b) of the Massachusetts Rules of Civil Procedure permitted service of pleadings and other papers by email among represented parties during the emergency. That rule governs subsequent pleadings, not the initial summons and complaint under Rule 4. California's Emergency Rule 12 is similar in scope. A handful of state trial courts have authorized substitute service by email under existing "manner reasonably calculated to give actual notice" provisions, on a case-by-case motion basis, when a defendant could not be reached at a physical address during lockdown. That is not email service as a routine option. It is a court order, obtained ex parte by the plaintiff, after a showing that traditional service failed.

For the defendant, this matters in one specific way. If the envelope your registered agent forwarded contains a court order authorizing substitute service on the company by email to a named address, read the order first. The 21-day federal clock (or the state equivalent) started the day that email was sent, not the day the registered agent scanned the order into the company portal. Email substitute-service orders can compress the response window to a working week if the plaintiff moved quickly. Call litigation counsel the afternoon the order arrives.

Registered agents operating remotely, in practice

The registered-agent market in September 2020 is mostly the market it was in March: the commercial providers moved to remote operations in mid-March, kept their statutory Delaware and Wyoming addresses open for process servers by appointment, and leaned on same-day scanning and email forwarding to deliver documents to clients. For a company whose registered agent is a major commercial provider (CSC, CT, Cogency, Northwest, Incorp, Harvard Business Services, and the other names on the standard list), the cover letter is arriving by email within hours of acceptance, and the original is following by carrier within one to two days.

The companies most likely to have been caught short this year are the ones that used a discount registered-agent service whose Delaware address was a shared mailbox and whose forwarding SLA was ambiguous on paper. A process server who shows up at a P.O. box or a UPS Store suite number ends up with a rejected delivery, the plaintiff ends up using the substitute-service rules, and the defendant ends up receiving an email that starts with "you were served last Tuesday" and a response deadline that has two days left on it. If this is your situation, switch agents after you resolve the current matter, and update the address on file with every state where the company is registered.

The "call your litigation counsel the same afternoon" rule has not changed, and the D&O notice rule has not changed. Claims-made D&O policies still require notice "as soon as practicable" or within a policy-defined window, and the carriers did not relax their notice deadlines during the pandemic. The one difference is that more brokers and more carriers will accept email-only notice this year. Send it by email and follow with certified mail. Do not skip certified mail because you sent the email; the policy wording requires both in many cases.

What default judgments look like this year

The mechanics are unchanged. Federal Rule of Civil Procedure 55(a) still directs the clerk to enter a default when the defendant fails to plead; Rule 55(b) still provides for default judgment, often on a motion without a hearing if the amount is a sum certain. Rule 60(b) still provides the narrow grounds for setting a default aside, and courts are still unpersuaded that a generic "the pandemic" narrative is, by itself, excusable neglect.

What has shifted is the background rate of defaults on companies whose operations addresses were mail-accessible but whose people were not. A handful of federal districts have published opinions this summer applying Rule 60(b) sympathetically to defendants who could document that the registered agent forwarded an email to an unmonitored company address during the March-to-May shutdown, and the summons sat unread for six weeks. Sympathy is not a doctrine. Do not plan to ride that line if you can avoid it.

The concrete move, if you are reading this with a summons in front of you: find out which calendar actually applies to your matter. Identify the court of filing, the date of service, the controlling emergency order (federal district general order, state supreme court administrative order, or governor's executive order), and whether the order tolls answer deadlines or only statute-of-limitations deadlines. Write the answer deadline on a single line. Calendar it twice. Email counsel. Notify the D&O broker. The rest is the same playbook as 2018, with one more piece of paper to read at the top.

The rule of thumb is this: in September 2020 the 21-day federal clock is still 21 days, the state clocks are whatever the most recent emergency order for that state says they are, and the only reliable way to know the difference is to read the order with the summons in your hand.

Sources

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