Federal Time Computation and Time Periods in Civil Actions

On Dec. 1, 2009, significant amendments to the Federal Rules of Civil Procedure will take effect. Most important is elimination of current Rule 6(a)(2), which excludes intermediate Saturdays, Sundays and legal holidays when the period is less than 11 days.

This change came about because of an opinion from our own Sixth Circuit, Miltimore Sales Inc. v. International Rectifier Inc., 412 F.3d 685 (2005). The timeliness of an attorney fee application was at issue. The court discussed the interplay between a 10-day time limit (for post-trial motions) and a 14-day time limit (for fee applications).

Judge Boyce Martin from the Commonwealth of Kentucky opened the opinion with these observations:

If a ten-day period and a fourteen-day period start on the same day, which one ends first. Most sane people would suggest the ten-day period. But, under the Federal Rules of Civil Procedure, time is relative. Fourteen days usually lasts fourteen days. Ten days, however, never lasts just ten days; ten days always lasts at least fourteen days. Eight times per year ten days can last fifteen days. And, once per year, ten days can last sixteen days. And this does not even take into account inclement weather. As we sometimes say in Kentucky, there's eight ways to Sunday.

An Advisory Commission Note explains in a helpful summary the basic December 1 change:

Under new subdivision (a)(1), all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other days-including intermediate Saturdays, Sundays, and legal holidays-are counted with one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday.

Many time periods are extended by the amendments. Here are some of the more important examples:

a. An answer or motion to dismiss must be filed 21 (not 20) days after service of the summons and complaint. Rule 12(a)(1)(A)(i).
  
b. The deadline for a jury demand is 14 (not 10) days after service of the last pleading. Rule 38(b)(1).
  
c. A motion for judgment as a matter of law (aka directed verdict) must be filed no later than 28 (not 10) days after judgment entry. Rule 50(b) & (d).
  
d. A motion for amended or additional findings in a nonjury trial must also be filed no later than 28 (not 10) days after entry of judgment. Rule 52(b).
  
e. Likewise, a motion for new trial must be filed within 28 (not 10) days after judgment day. Rule 59(b) and Rule 50(d).
  
f. Finally, notice of an application for default judgment against an appearing defendant must be served at least 7 (not 3) days before the hearing. Rule 55(b)(2).

Amendments to the Federal Rules of Appellate Procedure also take effect on Dec. 1. Rule 26 governs time computation. Most significant will be new subdivision 26(a)(1)(B): "count every day including Saturdays, Sundays, and legal holidays."

Congress has changed time periods in many statutes. See Public Law 111-16, effective May 7, 2009.

It's a whole new ball game. Take care.

Erratum

In my July 2009 column, "Other Crimes as Contextual Background Evidence," I should have written that "A presentment charged Joseph and Evangeline [not Esther, the victim] Combs with kidnapping, assault, rape and child abuse."


Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.