North Carolina Business Litigation Report

A Problem With The Soon To Be Effective Time Computation Changes To The Federal Rules Of Civil Procedure?

It looks like there is a small problem with the impending amendments to the Federal Rules of Civil Procedure.

The drafters seem to have overlooked an important point: exactly how will the Rule changes apply to deadlines which have started running before December 1st, the date on which the changes become effective?

If you aren't aware of the amendments about to take effect, the way in which you count the days to respond to a federal court filing will change on December 1, 2009. Time periods will change as well, usually from five days to seven days or from ten days to fourteen days.

What exactly does that mean if you are going to be dealing with a response to a filing made (or a deadline that starts running) before December 1, with a response or filing due after December 1? Should you count under the new "days are days" approach and use the time periods that are about to go in effect? Or do you apply the pre-December 1st Rules since the clock started ticking before then?

A Couple Of Examples Of The Problem

Does it make a difference on responses to motions? It could, because the Rule changes hit at a holiday time period, right after Thanksgiving. In North Carolina, there are two holiday days that week: Thanksgiving and the day after Thanksgiving. The old Rules excluded holidays from the count for certain response times, the new Rules don't.

So let's say you got served in an EDNC case via efiling with a Motion to Compel on Monday, November 16. You've right now got a ten day response time per EDNC Local Rule 7.1(e)(2). You count that ten days by excluding holidays and weekends and then add three extra days per FRCP 6(d). Under the current Rules, your response is due on Monday, December 7.

Under the effective-December-1-Rules, you have a 14 day response time, counted by including weekends and holidays and then adding the three extra days. That puts your response due on Thursday, December 3, four days earlier. Which deadline applies?

Here's an example which runs in the opposite direction, where you would have more time under the new Rules. Right now, Rule 59 gives you ten days after the entry of judgment to file a motion for a new trial or to move to alter or amend a judgment. The amended Rule 59 gives you a whole lot more time, 28 days. So if judgment is entered on November 30, can you take the 28 days or do you need to file within ten?

There Isn't A Clear Answer

I wish I could tell you that there was a clear answer, but there isn't. The "Statutory Time-Periods Technical Amendments Act of 2009," which approved the time computation changes, says without equivocation that "the amendments made by this Act shall take effect on December 1, 2009."

Rule 86 of the Rules of Civil Procedure speaks to amendments of the Rules. It says that amendments "take effect at the time specified by the Supreme Court" and apply to actions commenced after that date, but also to actions "then pending," unless the Supreme Court specifies otherwise or "the court determines that applying them in a particular action would be infeasible or work an injustice."

In the past, there has been more specification about effectiveness, which has usually been pegged to subsequently filed proceedings. That's true of the addition of Rule 502 to the Federal Rules of Evidence,  which applied to "all proceedings commenced after the date of enactment of this Act."

That approach is also true of the 2006 e-discovery amendments to the Rules of Civil Procedure, which said that they would take effect on December 1, 2006 and would "govern in all proceedings thereafter commenced."  The latter amendment specified its effect on pending cases, and said that it would apply "insofar as just and practicable, [to] all proceedings then pending."

Assuming motions are "proceedings," the drafters of the new changes didn't limit the Rule changes to subsequently filed proceedings, and they didn't address what happens with "then pending" actions.

The safest approach certainly is to apply the shorter time period, but it would have been nice if this issue wasn't out there.

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Comments (1) Read through and enter the discussion with the form at the end
Van - November 23, 2009 11:43 AM

I am faced with this same issue. The author of this post is correct. The issue is whether, under FRCP 86(b), the Court would be willing to apply the old rule because application of the new rule "would be infeasible or work an injustice."

I found the case below regarding a 1948 amendment to FRCP 73(a) that presented an analogous situation. There, the Court applied the new rule because it appeared that the Government -- which had not acted timely under the new rules -- knew about the amendments and had no good reason for complying with them.

All of this counsels in favor of using the new counting rules for any deadline that falls after December 1, 2009.

From Petition of Schuette, 178 F.2d 920 (2d Cir. 1949):

The order of the court below admitting the appellee to citizenship was entered on February 19, 1948. The amendment to Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., changing the time within which an appeal to the United States Court of Appeals may be taken from three months to sixty days in cases where the United States is a party became effective on March 19, 1948. The government took no appeal until May 10, 1948, or about eighty-one days after the entry of the original order. It seeks to be excepted from the shortened time provided by the amendment for taking its appeal because of Rule 86(b) of the Federal Rules of Civil Procedure which limits it to the time prescribed by the amendment except to the extent that in the opinion of the court the application of the shortened time to a 'particular action pending when the amendments take effect would not be feasible or would work injustice.' It is not claimed that the government was not aware of the new rule, but only that its activities were too numerous or its departments too busy to make a final decision whether to take the appeal prior to the time when it was finally taken. After the new rule became effective the government still had thirty days in which to make its decision and, as it knew the law and the facts, it was not in our opinion entitled to exemption from application of the new rule. It in fact waited for eighty-one days after the entry of the judgment, and about fifty-two days after the amendment to Rule 73(a) became effective, before acting. We can see no excuse for such a delay, and regard the situation as substantially different from that which we dealt with in McAllister v. Cosmopolitan Shipping Co., 2 Cir., 169 F.2d 4, where the application of the new rule would have given the appellant only about a week within which to take his appeal. The situation here resembles that in the case of Smith v. Lehigh Valley R. Co., 2 Cir., 174 F.2d 592, in which we declined to extend the appellant's time under Rule 86(b).

Mack Sperling
Brooks Pierce, LLP
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