by R. Christopher Preston
On December 1, 2009, major changes took effect in the Federal Rules of Civil Procedure, affecting the time for filing nearly every document or pleading that one files in federal district court. Though at the same time changes were also made to the federal procedural rules governing bankruptcy and criminal cases, this article only addresses the timing changes to the Federal Rules of Civil Procedure (“Federal Rules”). In conjunction with these changes to the Federal Rules, the United States District Court for the District of Utah modified the timing provisions for some of its local rules. For the most part, these changes affect only how one calculates deadlines for filing documents or pleadings pursuant to the Federal Rules. The purpose of this article is to alert and educate readers on these recent changes.
Counting Days Under the Federal Rules
Central to the changes effected in the Federal Rules is the modification in the method for counting days when calendaring response times. Previously, a party had to be conscious of two separate methods for calculating deadlines, depending on whether the amount of time to act was more or less than 11 days. “When the period of time prescribed or allowed,…is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.” Fed. R. Civ. Pro. 6 (pre-December 2009). However, if the period of time prescribed or allowed was 11 or more days, then intermediate Saturdays, Sundays, and legal holidays were included in the computation. See id. While generally not difficult to follow, this bifurcated system often tripped up the unwary and required lawyers to always remain conscious of the number of days required for a particular response.
Indeed, the Utah federal district court website explained that this was one of the reasons why changes were proposed to the timing rules:
The old system of counting created a series of potential pitfalls for litigants in counting out time periods. For example, 12 days usually last 12 days, 10 days never lasted just 10 days. In fact, 10 days always lasted at least 14 days and eight times a year 10 days lasted 15 days and once a year, 10 days lasted 16 days.
New Federal Rules Frequently Asked Questions, available at http://www.utd.uscourts.gov/documents/rules_faq.html.
Because intermediate weekends and holidays were excluded from only the under-eleven-day calculation, there was little consistency in the amount of time a party had to file its documents, even though the number of days provided in the Federal Rules did not change. In order to avoid the continuation of this inconsistent method of counting days, these new changes were proposed.
Hence, the central change to the Federal Rules that went into effect on December 1, 2009, requires parties to now “count every day, including intermediate Saturdays, Sundays, and legal holidays” when calculating deadlines in federal court. Fed. R. Civ. Pro. 6(a)(1)(B). In order to compensate for the shortened period this would create, most of the time periods for filing documents were extended. These two changes – counting every calendar day and extending time periods – makes it so that essentially the same amount of time is available under the new rules as was provided under the old rules. Thus, while the changes seem significant, the actual impact on civil trial practice is small. While the intent may have been to make the system simpler, as with any change, the new timing rules will take some getting used to.
Changes to Deadlines in the Federal Rules
Generally speaking, time periods have been modified to fall within multiples of seven, and the following can be said about the changes to the rules:
• Five day deadlines became seven-day deadlines;
• Ten and 15 day deadlines became 14-day deadlines;
• 20 day deadlines became 21 day deadlines.
See Louise York, Memo re: Time Calculation Changes (Dec, 9, 2009) available at http://www.utd.uscourts.gov/documents/timecomp_memo.pdf.
Since not all of the deadlines fall squarely within these general parameters, the following discussion identifies the changes to some of the more commonly encountered deadlines. As with all things legal, certain exceptions to the timing descriptions below do apply, and you must always consult the rules to reach the appropriate conclusion based on the facts of your case.
Answer/Motions to Dismiss
Prior to this recent change, an answer or motion to strike or dismiss generally had to be filed within 20 days after service of the complaint. See id., and 12(f) (pre-Dec. 1, 2009). Under the new Federal Rules, an answer or motion to strike or dismiss must be filed within 21 days. See Fed. R. Civ. Pro. 12(a)(1)(A)(i), 12(b), and 12(f). Similarly, a pleading could be amended any time within 20 days of service of the complaint, but now the time period has been extended to 21 days. Compare Fed. R. Civ. Pro. 15(a)(a)(1) (pre-Dec. 1, 2009) to Fed. R. Civ. Pro. 15(a)(1). Responsive pleadings required after denial of a Rule 12 motion previously had to be served within 10 days after notice of the court’s action. See Fed. R. Civ. Pro. 12(4) (pre-Dec. 1, 2009). With the change, the time period is now 14 days after notice of the court’s action. See Fed. R. Civ. Pro. 12(a)(4). If a motion to amend has been granted, the time period for answering the amended complaint has been modified from 10 days to 14 days. Compare Fed. R. Civ. Pro. 15(a)(3) (pre-Dec, 1, 2009) to Fed. R. Civ. Pro. 15(a)(3).
Summary Judgment Motions
Previously, the Federal Rules did not contain deadlines for filing summary judgment motions. See Fed. R. Civ. Pro. 56(c) (pre-December 2009). The changes that went into effect on December 1, 2009 now contain a deadline that applies “unless a different time is set by local rule or the court orders otherwise.” Fed. R. Civ. Pro. 56(c). While it is important to note this change, the local rules for the Utah federal district court prescribe a different time period regarding summary judgment that is discussed below.
Post Judgment Motions
One of the biggest changes resulting from these new federal rules is the extended time periods regarding post-trial motions. Under the new changes to the Federal Rules, a Rule 52 motion to amend or make additional findings and a Rule 59 motion for new trial or to alter or amend a judgment must be filed within 28 days after entry of judgment. See Fed. R. Civ. Pro. 52(b), 59(b), (e). Since the rules previously allowed a party only 10 days to file a motion, this represents a truly significant change. The deadline for filing notices of appeals has not changed and remains 30 days for most cases. See Fed. R. App. Pro. 4(a)(1)(A). Thus, the new extended deadlines in the Federal Rules for filing post-trial motions now fall very close to the deadline for filing appeals.
Other Changes to the Federal Rules
While most timeframes are calculated in terms of days, the changes to the Federal Rules also address the situation where a time period is stated in hours. See Fed. R. Civ. Pro. 6(a)(2). In addition, the new Federal Rules define when the last day ends, which is now “for electronic filing, at midnight in the court’s time zone.” Id. 6(a)(4). Many will be happy to know that Rule 6(e) (also known as the “mailing rule”) was not modified and still allows additional time after certain kinds of service. See id. 6(e).
Changes to the Local Rules of the Utah Federal District Court
Changes to the local rules governing the Utah federal district court also went into effect on December 1, 2009. The main changes relevant to timing are found in DUCivR7-1(b)(4). The local rule previously required that responses to motions pursuant to Rule 12(b) (motion to dismiss), Rule 12(c) (motion for judgment on the pleading), and Rule 56 (summary judgment) be filed within 30 days after service. Now responses must be filed within 28 days after service of the motion. See DUCivR. 7-1(b)(4)(A). A reply must be filed within 14 days after service of the opposition memorandum. See id.
Changes were likewise made to the timing for responding to all other motions, including motions pursuant to Rule 65 (injunctive relief). According to the new rule, responses to all other types of motions must be filed within 14 days (previously 15 days) of service, and reply memoranda must be filed within 14 days (previously 7 days) of service of the memorandum in opposition. See DUCivR 7-1(b)(4)(B)
Under the new rules, a bill of costs must be filed within 14 days after entry of the final judgment. See DUCivR 54-2(a). Objections to the bill of costs must be filed within 14 days after filing of the bill of costs. See DUCivR 54-2(b). The taxation of costs may be reviewed if “a motion for review is filed within seven days after entry on the docket of the clerk’s action.” DUCivR 54-2(d). The time period for filing a motion for attorney’s fees did not change and remains 14 days after entry of a judgment. See DUCivR 54-2(f).
Proposed Changes to the Utah Rules of Civil Procedure
It appears that state courts will be following the federal courts’ lead on abolishing the differing counting of weekends and holidays based on whether the time period is over 10 days. On July 7, 2008, the Utah Supreme Court and the Utah Judicial Council sought comments on a proposed change to Rule 6 of the Utah Rules of Civil Procedure (“Utah Rules”). These proposed changes largely mirror the timing changes in the Federal Rules that went into effect on December 1, 2009. Together with the proposed change, the Judicial Council prepared a table listing by rule the deadline changes resulting from the adoption of the proposed Rule 6. One significant difference is that this proposed change eliminates the “mailing rule.” Those interested may view the proposed change at http://www.utcourts.gov/resources/rules/comments/20080707/; however, it should be noted that the comment period has long passed. The proposed change to Rule 6 is not yet final and is still under consideration. It is not yet known when a final decision will be made by the Utah Supreme Court or the Utah Judicial Council regarding this proposed change to the Utah Rules.
The changes to the Federal Rules and the local rules now make deadlines more uniform in calculation and duration. The changes should not significantly affect civil trial practice. But the change will inevitably cause problems for those who fail to bear in mind two important facts: (1) most of the deadlines in the Federal Rules have changed, and (2) every day must now be counted for calendaring all deadlines specified in the Federal Rules. With these new changes to the Federal Rules simplifying the calendaring process, worries about calculating deadlines should swiftly become a thing of the past.
Changes to Federal Timing Rules
Before: If time period was less than 11 days, then you did not count intermediate weekends and holidays.
Now: Count Every Day
Pleading Previously Now
Answer 20 days 21 days
Counterclaim Answer 20 days 21 days
Motion to Strike/ 20 days 21 daysDismiss/More Definite
Amend Pleadings 20 days 21 days after service
Answer After Motion 10 days 14 days after entry
Response to Amended 10 days 14 days after servicePleadings
Opposing Motion for None 14 days after serviceSummary Judgment
Reply to Motion for None 14 days after serviceSummary Judgment
Motion for Judgment 10 days after 28 days after entryas a Matter of Law entry of judgment of judgment
Motion to Amend 10 days after 28 days after entryFindings entry of judgment of judgment
Motion for New Trial/ 10 days after 28 days after entryAlter or Amend entry of judgment of judgment
Memoranda Opposing 15 days 14 daysMotions (generally)
Reply Memoranda 7 days 14 days
Memoranda Opposing 30 days 28 days12(b), 12(c), and 56Motions
Reply Memoranda 10 days 14 days12(b), 12(c), and 56Motions
1. This table does not include all timing changes, only some of the more common ones. Please make sure to check the rules for changes that affect your particular issue.