Business Court Rules On How To Count Days For Filing A Response

Gateway Management Services, Inc. v. Advanced Lubrication Technology, Inc., 2008 NCBC 11 (N.C. Super. Ct. May 5, 2008)(Tennille)

When you have an additional three days to respond to a filing served by mail, and the response period ended on a weekend or holiday, do you start counting the three days on the holiday or weekend day, or do you start from the first business day after the expiration of the response period?

The North Carolina Business Court answered this counting question, and another important time calculation question, today in the Gateway Management case.  (You can click on the case name at the top to see the opinion).

The issue was the timeliness of Plaintiff's Reply to Defendant's Counterclaim.  The Plaintiff said that the right method of counting was to count first the thirty day response time allowed by Rule 12(a), and that if the thirtieth day fell on a weekend or holiday, to count the three days from the first following business day.  (Note: this is exactly the right way to count under the comment to the 2005 amendments to Federal Rule of Civil Procedure 6(d), which is worded differently than the North Carolina Rule).

The Court disagreed with the Defendant on when to start counting the three days for service by mail.  Here's what it held:

"The correct formula for the computation of a time period during which a filing is required is as follows: number of days allowed under applicable statute + three days under Rule 6(e) + any weekend or holiday under Rule 6(a). The Court notes that the three days under Rule 6(e) is added to the end of the time period allowed by statute regardless of whether that time period ends on a Saturday, Sunday, or legal holiday. It is at the end of the additional three days that Rule 6(a) applies."

The Court also dealt with another time calculation issue: when to start counting the time for a response when the document to which the response is due is e-filed, but the party who has to respond has not yet registered to e-file and no Order requiring e-filing has yet been entered.   Even though this might be a rare situation, there's potential danger here, so you might want to keep reading.

It made a difference in the Gateway case because Defendant had e-filed its counterclaim four days before it was served on Plaintiff's counsel.  Plaintiff was in default if the count had started from the date of e-filing.  But in this situation, the Court held that the count starts when the party is served pursuant to North Carolina Rule of Civil Procedure 5(b).

The answer would have been different if the Court had entered an Order requiring e-filing.  Then, even though Plaintiff hadn't registered to e-file, service would have been complete when Defendant's counsel received notice of its own e-filing.  (That's, right, Defendant's counsel, because Business Court Rule 6.4 says that an electronic filing is complete when the person filing the paper gets a Notice of Electronic Filing.)  Business Court Rule 6.5 says that e-filing is an "adequate and timely substitute for service" under the Rules of Civil Procedure.

Also, it wouldn't have made a difference that Plaintiff's counsel had no idea about the e-filing.  The Court held that "all parties have an affirmative duty to check the status of cases they have in front of the Business Court before they are registered to e-file as the Court’s filings are all made via the electronic system."

 

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