Concept
Filing and Proof of Service
Service of papers after the complaint
Filing and Proof of Service
Rule 5(d) governs filing, the step that carries a paper from the lawyers' side of the case to the court's side.1 The earlier sections followed a paper to the other parties and, when a party has a lawyer, to the lawyer.2 Filing sends the paper somewhere else: to the court, where it joins the record the judge works from. Service tells the other side what has been asked or demanded. Filing puts the same request before the one actor who can grant it.
The two acts can occur separately, and Rule 5 allows for both possibilities. Some served papers are never filed, because Rule 5(d) holds certain disclosures and discovery papers back from the clerk.3 The reverse problem is the harder one. A filed paper shows the judge a request but not whether anyone else received it, since the judge was not present at the delivery. A written certificate from the person who made service closes that gap, and the certificate comes from the server because the server alone knows what was done.
The first subsection, Filing and Certificates, covers which served papers must also be filed, how soon the filing must follow, and what the certificate accomplishes. The second, Electronic Filing, covers who must use the court's electronic system, when an unrepresented person may use it, and how an electronic filing counts as a signature and as a written paper. The same system appeared earlier as a way to serve registered users, so the two subsections meet at that point.
Filing and Certificates
Rule 5(d)(1)(A) states the general duty: a paper after the complaint that is required to be served must be filed, together with a certificate of service, within a reasonable time after service.4 Two features of that sentence carry the weight. The duty to file attaches only to papers that must be served, so the list of covered papers taught earlier also marks out what can reach the court's file. And filing follows service in time: the paper goes to the other parties first and to the court second. The rule fixes no number of days. It asks only that filing come within a reasonable time after service.
The certificate of service connects the two acts. The judge was not there when a motion was mailed or handed over, so a bare filing would show a request and no sign that anyone else had been told of it. The certificate is the filer's written statement that service was made. It gives the court a record to rely on, and a later dispute over whether the opponent received the paper need not turn on what each lawyer remembers. When a paper is served by any means other than filing it with the court's electronic-filing system, and the paper is filed, the certificate of service must be filed with it or within a reasonable time after service.5
A bar question about a lawyer who mails a written motion to opposing counsel tests exactly this sequence.
The duty to file has an exception as important as the rule itself. Disclosures under Rule 26(a)(1) or (2), and the discovery requests and responses the rule lists, must not be filed until they are used in the proceeding or the court orders filing.6 Depositions and interrogatories are on that list.7
The exception separates two acts that students tend to merge. Listed discovery papers are still served. A discovery paper required to be served on a party is a covered paper unless the court orders otherwise,8 and an opponent cannot answer interrogatories it never received. Only the filing waits. The evident reason is that parties trade requests and answers among themselves, and most of that exchange never becomes the subject of a ruling. Holding it back keeps the record free of material the judge has no occasion to read. Material the judge does need reaches the file when a party uses it, or when the court orders filing. The tempting reading, that anything served must also be filed with a certificate, overshoots for exactly these items.
A third point qualifies the certificate. No certificate of service is required when a paper is served by filing it with the court's electronic-filing system.9 The system produces the record that the certificate would otherwise supply. Under Local Rule CV-5 of one district, for example, the Notice of Electronic Filing that the court sends automatically by email is proof of service on all counsel who consented to electronic service by registering with the clerk.10 A signed statement from the filer adds little when the court's own system has already recorded the transmission.
The exception follows the method of service, so a filer must ask how the paper was served before deciding whether a certificate is due. A registered lawyer who serves a motion by filing it through the system needs no certificate. The same motion emailed to opposing counsel under a written consent, and then filed separately, was served by other means, and the certificate must be filed with the motion or within a reasonable time after service.11
One mechanical point completes the picture. A paper not filed electronically is filed by delivering it to the clerk, or to a judge who agrees to accept it for filing. That judge must then note the filing date on the paper and promptly send it to the clerk.12 The judge route depends on the judge's agreement, so the clerk is the ordinary destination.
Electronic Filing
Rule 5(d)(3) addresses electronic filing and signing.19 Its first provision sets the default for lawyers: a person represented by an attorney must file electronically, unless the court allows nonelectronic filing for good cause or a local rule allows or requires it.20 The provision concerns delivery of a paper to the court. Delivery to the other parties remains the business of Rule 5(b).
The two acts can still happen together. A paper filed through the court's system generates an automatic notice of electronic filing, and under one district's Local Rule CV-5 that notice is proof of service on every lawyer who consented to electronic service by registering.21 Filing through the system can therefore serve a registered user, which is where this subsection meets the electronic service method taught earlier. For a represented party, the person served remains the attorney unless the court orders service on the party.22 An exam answer should keep two questions apart: whether the paper had to be filed electronically, and whether the transmission also served the recipient.
The rulemakers' explanation for the mandate rested on experience. Most districts had already adopted local rules that required electronic filing and allowed reasonable exceptions, and the time had come to make electronic filing generally mandatory in all districts for a person represented by an attorney.23 The text still opens two exits from the mandate, and each fits a different problem. A finding of good cause by the court answers an obstacle peculiar to one filing, so the judge who sees the circumstances decides whether paper is warranted. A local rule can address a situation the district anticipates, and it can either allow nonelectronic filing or require it.
The question changes when the person filing has no lawyer. An exam stem often describes a litigant who sees opposing counsel using the system and assumes the same access. A person not represented by an attorney may file electronically only if allowed by court order or by local rule.24 Permission therefore runs from the court to the litigant, and the rule leaves the court to decide whether to open its system to that person. Local rules vary on whether pro se litigants may register to use the system to make and receive service, so the answer in a given district depends on what that district has adopted.25
Electronic filing also has to fit rules written for paper, and two provisions do that work. The first concerns signing. A filing made through a person's electronic-filing account and authorized by that person, together with that person's name on a signature block, constitutes the person's signature.27 Each of the three parts has a job. The account identifies who is filing. The authorization ties the upload to the person's own decision to file, which matters because others in a law office can physically send a document the lawyer never approved. The name in the signature block supplies what a handwritten signature would have told the court: that this named person stands behind the paper.
The second provision answers a different objection. A paper filed electronically is a written paper for purposes of these rules.28 The list of papers that must be served, taught earlier, speaks of written motions and written notices, and other rules refer to written papers in the same way. Without this sentence, a filer or an opponent could argue that a document existing only as electronic data is not a writing, and that argument would open a gap in every rule that depends on one. Together with the signing provision, it makes an authorized electronic filing as effective as a signed paper.