Get ready for changes in how to count the days for meeting deadlines under Rule 6 of the Federal Rules of Civil Procedure. The upcoming changes abandon the practice of excluding weekend days and holiday days in calculating a response date when the period for the response is less than eleven days.
On December 1st, when "time computation amendments" to the Federal Rules become effective, a day will be counted as a day, whether it is a weekend day, Thanksgiving, Christmas, or any other recognized holiday day. That will be true regardless of the number of days allowed for the response.
New Rule 6(a)(1)(B) says to "count every day, including intermediate Saturdays, Sundays, and legal holidays." The objective of this change, according to the Report of the Judicial Conference, was to "make the method of computing time consistent, simpler, and clearer." If a deadline is measured in hours, The new Rule says hours are counted the same way. Every hour counts.
The full text of the new Rules is here, and what follows is a short summary of important time calculation points.
Counting Will Be A Little Different Depending On Whether You Are Counting Forward Or Backward
The basic rules of when to start counting days, and when to stop, won’t change under the new Rule. The day of the act or event that triggers the count still isn’t included. You start counting the following day. If the last day of the count falls on a weekend day or on a state or federal holiday, the count still extends forward to the next day that is not a weekend day or holiday.
The count also gets extended if the final day falls on a day that the court is "inaccessible," to the first accessible day. The term "inaccessible" isn’t limited, as it is currently, to lack of accessibility caused by "weather or other conditions." The new advisory committee notes to Rule 6 suggest that inaccessibility might include "an outage of the electronic filing system."
Things are a little different if you are counting backwards. Why would you count backwards? Think of, for example, final pretrial disclosures due a certain number of days before trial.
The new Rule 6 says that to get to the "next day" when counting backwards, you continue to count backwards if the last day of the count is a weekend or holiday. So if your last day is Saturday, the filing is due the Friday before that Saturday.
Holidays are treated differently between a backward count and a forward count. If you are counting backwards, and the last day is a state holiday (not a federal holiday), then the count ends on the state holiday. If you hit a federal holiday, however, you continue counting backwards to the next business day. But forward counts treat state and federal holidays in the same way.
New Definition Of The "Last Day"
There’s now specific definition of the meaning of "last day," contained in new Rule 6(a)(4). For paper filings, the last day ends "when the clerk’s office is scheduled to close." For electronic filing, the last day ends "at midnight in the court’s time zone."
What About Three Days For Mailing?
Rule 6(d), which gives lawyers an additional three days if served by mail or e-filing, has survived. That seems odd, given the definition of "last day" taking into account e-filing procedures and the widespread use of electronic filing.
Response Periods For Discovery Responses, Summary Judgment, And Other Matters
The change in counting methodology resulted in the adjustment of a number of different response time periods set out in the Rules.
The drafters of the new rules changed most time periods to be in multiples of seven, the thought being that deadlines then would usually fall on weekdays. So most ten day periods in the Rules became 14 days. The time for responding to a complaint, formerly 20 days, will be 21 days.
As for summary judgment, there is a new version of Rule 56(c)(1)(A), which says that in the absence of local rule, a party can move for summary judgment at any time up until thirty days after the close of discovery. The response is due 21 days later, and the reply is due 14 days after that.
The time for responding to interrogatories and document requests wasn’t affected by the rule changes. Those remain at 30 days.
If you want a rule by rule breakdown of the change in time periods for responses, of which there are many, there are good summaries on the Smart Rules blog and also in an article at law.com. There’s also an powerpoint from the federal judiciary website, titled "The Days Of Our District Court Lives."
Similar amendments were made to the Federal Rules of Appellate Procedure and the Federal Rules of Bankruptcy Procedure. There’s an appellate rules powerpoint from the federal judiciary website, and also a bankruptcy rules powerpoint.
[I’ve done a followup post on the rules amendments about issues involving the effective date of the amendments. Specifically, it’s on how the amendments apply to deadlines that were already running on the December 1 effective date.]