On December 1, 2009, several significant changes to the Federal Rules of Civil Procedure will take effect. These changes relate primarily to timing issues and problems currently present in the Federal Rules. The following anecdote eloquently addresses such timing problems: “Twelve days usually last 12 days, while 10 days never last just 10 days. Ten days always last at least 14 days, eight times a year 10 days can last 15 days, and once per year 10 days can last 16 days.” See The Days of Our Circuit Court Lives, link below. According to Judge Lee H. Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure, “The current rules exclude intervening weekends and holidays for some short time periods, resulting in inconsistency and unnecessary complication.” See Time Changes Coming to the Federal Rules, link below. The changes to the Rules attempt to eliminate the confusion by adopting a “days are days” approach in calculating time periods under the Federal Rules. Time is computed by excluding the day of the triggering event and counting every day, including Saturdays, Sundays, legal holidays, and the last day of the period. As a result, time periods will be literal and steadfast, with fewer complications in computing the time for the deadline. The current rules, under Rule 6(a)(2), excluded weekends and holidays in computing time periods that were less than eleven days. Because the new rule will shorten many of these time periods, the Committee extended several time periods under the Federal Rules. According to Rosenthal, “Five-day periods became 7-day periods and 10-day periods became 14-day periods, in effect maintaining the status quo.” See Time Changes Coming to the Federal Rules. Time periods that were less than thirty days under the current rules were changed to multiples of seven (i.e. 10 days becomes 14 days, 20 days becomes 21 days), while periods that were thirty days or more remained the same.
A significant addition to the new rules is a method for calculating the “last day” of a time period. The new Rule 6(a)(4) differentiates between electronic filing and other means of filing. For electronic filing, the last day expires at midnight in the court’s time zone. For all other means of filing, the last day expires when the clerk’s office is scheduled to close. Rule 6(a)(1)(C) still extends the time period for filing when the last day of the period is a weekend or legal holiday, and allows filing until the end of the next day that is not a weekend or a legal holiday. Moreover, if the Clerk’s office is “inaccessible” on the last day for filing, the deadline is extended until the “first accessible day” that is not a Saturday, Sunday, or legal holiday under Rule 6(a)(3)(B).
The new Rule 6(a)(2) also provides a method of calculating time periods stated in hours. The rule states that counting for a period stated in hours begins “immediately on the occurrence of the event that triggers the period.” The rule further mandates that “every hour is counted, including hours during intermediate Saturdays, Sunday, or legal holidays.” In the event that the last hour falls on a Saturday, Sunday, legal holiday, or on a day the Clerk’s office is inaccessible then the deadline is extended to the same time on the next day that is not a Saturday, Sunday, or legal holiday, or the court is accessible.
The amendments to the current Federal Rules attempt to simplify the attorney’s life with regard to timing and deadlines. Will the new rules have such an outcome? Only time will tell.
For a full text of the amended rules, visit www.uscourts.gov/rules.
To view the Power Point Presentation, The Days of Our Circuit Court Lives, click here www.uscourts.gov/rules/presentation.html
To view Time Changes Coming to the Federal Rules, click here http://www.uscourts.gov/ttb/2009-06/article02.cfm.
See Fed. R. Civ. P. 6 (2009).
Posted on
Tuesday, November 17, 2009
by Ashley Streight