RULE 45. COMPUTING AND EXTENDING TIME
(a) Computing Time. The following rules apply in computing any period of time specified in these rules, any local rule, or any court order:
(1) Day of the Event Excluded. Exclude the day of the act, or event, or default that begins the period.
(2) Exclusion from Brief Periods. Exclude intermediate Saturdays, Sundays and legal holidays when the period is less than 11 days.
(3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or day on which weather or other conditions make the clerk's office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday or day when the clerk's office is inaccessible.
(4) Facsimile Service. Service by facsimile transmission must be completed by 5:00 p.m., receiver's time, on a weekday that is not a legal holiday, or service is considered made on the following weekday that is not a legal holiday.
(5) "Legal Holiday" Defined. As used in this rule, "legal holiday" means:
(A) a specific day set aside as a holiday under N.D.C.C. § 1-03-01; or
(B) any other day declared a public holiday by the President of the United States or the governor of this state.
(b) Extending Time.
(1) In General. When an act must or may be done within a specified time, the court on its own may extend the time, or for good cause may do so on a party's motion made:
(A) before the originally prescribed period or previously extended time expires; or
(B) after the time expires if the party failed to act because of excusable neglect.
(2) Exceptions. The court may not extend the time for taking any action under Rules
33, 34, 35 , and 37, except as stated in those rules.
(c) Additional Time After Service by Mail or Commercial Carrier. Whenever a party must
do an act within a prescribed period after service of a notice or
other document, and
the notice or document is served and service is made by mail or third-party
carrier, three days must be are added to after
the prescribed period would otherwise expire
under Rule 45(a). Service by facsimile transmission is not service by mail or third-party
Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2001; March 1, 2006; March 1, 2007.
Rule 45 is an adaptation of Fed.R.Crim.P. 45 with certain modifications. The rule is similar to N.D.R.Civ.P. 6, which also deals with computing time.
Rule 45 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
A subdivision referring to terms of court was deleted, effective March 1, 2006. The district courts of North Dakota are in continuous session and terms of court are not a factor in computing or extending time. At the same time, and consistent with the federal rule, a subdivision dealing with motions and affidavits was transferred to Rule 47.
Subdivision (a) was amended, effective March 1, 2001, to extend the period from 7 days to 11 days when intermediate Saturdays, Sundays, and legal holidays are excluded from time computations.
Subdivision (a) was amended, effective March 1, 2006, to include a paragraph defining the term "legal holiday".
Subdivision (b) was amended, effective March 1, 2007, to delete Rules 29, 33 and 34 from the exceptions paragraph.
Subdivision (c) is an adaptation of N.D.R.Civ.P. 6 (e).
Subdivision (c) was amended, effective March 1, 1999, to make the three-day extension for service by mail applicable when service is via commercial carrier. The proof of service must contain the date of mailing or deposit with the commercial carrier as required by Rule 49(e) and N.D.R.Civ.P. 4(k) and 5(f).
Subdivisions (a) and (c) were amended, effective January 1, 1995, to clarify time computations when making service by facsimile transmission. Subdivision (c) was amended, effective March 1, 2007, to clarify how to count the three-day extension for service by mail or commercial carrier.
SOURCES: Joint Procedure Committee Minutes of April 27-28, 2006, pages 6-7; January 26, 2006, page 11; January 27-28, 2005, page 37; January 27-28, 2000, pages 16-17; January 29-30, 1998, page 20; April 28-29, 1994, pages 15-16; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, pages 20-22; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, page 31; December 11-15, 1972, pages 48-50; September 17-19, 1970, page 10; March 12-14, 1970, pages 16-18; Fed.R.Crim.P. 45.
SUPERSEDED INSOFAR AS CRIMINAL PROCESS: N.D.C.C. § 1-02-15.
CONSIDERED: N.D.C.C. §§ 1-01-33, 1-03-01(2-14).
CROSS REFERENCE: N.D.R.Crim.P. 29 (Motion for a Judgment of Acquittal);
N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 34 (Arresting Judgment); N.D.R.Crim.P. 35
(Correcting or Reducing a Sentence); N.D.R.Crim.P. 37 (Appeal as of Right to District
Court; How Taken); N.D.R.Crim.P. 47 (Motions); N.D.R.Civ.P. 4 (Persons Subject to
Jurisdiction--Process--Service); N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other
Papers); N.D.R.Civ.P. 6 (Time); N.D.R.App.P. 26 (