“Just another stupid thing that I done wrong.”
— Goldfinger, “Counting the Days” © 2000.
[Okay, okay. We started with lyrics from Goldfinger. But now we give you Chuck’s words:]
Unless Congress acts otherwise — and their plate ought to be full with other things — on December 1, 2009, new changes to the Federal Rules of Civil Procedure will go into effect that will revolutionize the way time is calculated in federal court litigation. The changes are significant and sweeping.
The Federal Rules have featured a variety of due dates, calculated forward and backward, in days and sometimes even hours. How the days were counted, or not, depended on whether the time period was more or less than ten days, and so in some cases a deadline less than ten days was actually more than a corresponding deadline more than ten days, when weekends or holidays were omitted from the counting, and time added for service by mail. The new rules are intended to simplify and standardize the process.
The changes start with Rule 6 and are intended to extend to every other Rule dealing with calculating deadlines for action in Federal courts. Consistent with these amendments, time periods in a total of 91 federal rules and 28 federal laws were also adjusted. In addition to the Civil Rules, the Federal Appellate, Bankruptcy, Civil, and Criminal Rules have also changed correspondingly.
The new theme is “days are days.” All days are to be counted. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. Other changes affect how to tell when the last day of a period ends, how to compute hourly time periods, how to calculate a time period when the clerk’s office is inaccessible, and how to compute backward-counted periods that end on a weekend or holiday. The rules also clarify the long held understanding that when e-filing is involved, a due date runs until midnight in the time zone of that court’s clerk’s office.
There are now new time periods in Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72 and 81. Rules that previously called for 1, 3 or 5-day periods become 7-day periods. Deadlines that were previously 10 or 11 days become 14 days, and periods that were once 20 days become 21 days. For example, a response to a motion for summary judgment is now due 21 days later, and reply, where permitted, 14 days after that. Important exceptions are found in Rules 50, 52 and 59. Periods of 10 days in those rules become 28 days under the new rules.
Unremarked upon in the official commentary, and in all the blogging that this author has seen, is the deletion of the rule adding time for service by mail. The changes delete Rule 6(d) which provided for three extra days for response if service was accomplished by various methods listed in Rule 5. The rule, which used to provide extra time if service was by mail, rather than by hand delivery, has become somewhat anachronistic given the prevalence of e-filing and other methods of service. The change also removes an incentive to serve by hand delivery, which in some jurisdictions removed the three extra days for response that would accompany mail service.
The Committee has asked the district courts to revise their Local Rules accordingly, and to do so effective December 1. It remains to be seen if this will be done, and if any paradoxes will remain where and if it is not. The time-computation rules amendments are at www.uscourts.gov/rules.
The previous rules have been around a long time, and though commentary on the new rules was not uniformly positive, the old system was one that nobody could be totally comfortable with. The new system ought to be more straightforward for litigators in federal courts.
Thanks again for publishing my guest column. Unfortunately, part of it was wrong. Neville Boschert, a sharp lawyer in Jackson Mississippi, pointed out that 6(d), allowing three days for mail service, is still in the 2009 West edition of the rules. I went straight to the top, and spoke with a fellow at the US Courts Rule Committee, who confirmed 6(d), the three days for mail service, is still part of the rule. He said he gets that question a lot lately.
Caution: The texts of the revised rules that are being circulated around (including on Westlaw) are the “clean copy” from the U.S. Supreme Court to the U.S. Senate, which only include the portions of each rule that contain changes. The omission of 6(d) means that it continues in the same form – I incorrectly assumed it meant that portion was not part of the new rule. My source did say that subsection was on the agenda and may not survive much longer, given the growing prevalence of efiling.