M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 6, N.D.R.Civ.P.; Time
At its September meeting, the Committee discussed the Supreme Court's reasoning in the recent Comstock Const., Inc. v. Sheyenne Disposal, Inc. decision. The Committee's consensus was that the Comstock Court's interpretation of Rule 6's extra time for service by mail rule was not consistent with the Committee's view regarding the purpose of the rule.
The Committee instructed staff to prepare amendments to Rule 6 to clarify that, when an item is served under Rule 4, the counting of any period triggered by the service begins when the item is delivered to the recipient.
The Rule 6 language at issue in Comstock (and discussed at the Committee's September meeting) is found in subdivision (e) of the rule. This language has been part of Rule 6 since 1957, when the Rules of Civil Procedure were implemented. It allows a party three extra days to act in response to an item when the item is served by mail.
Rule 6(e), Fed.R.Civ.P., is similar to subdivision (e), but narrower. It allows the extra three days only when the item is served under "Rule 5 (b)(2)(B), (C), or (D)." The amended version of Rule 6 that is included for the Committee's consideration incorporates this federal narrowing, allowing the three extra days for mailing only when an item is served under Rule 5.
Additional revised language specifies that: "If the notice or paper is served by mail or third-party commercial carrier under Rule 4, the prescribed period begins running upon delivery of the notice or other paper." This language is designed to reflect the Committee's consensus re: Comstock, but it may be unnecessary if the Committee accepts the language restricting application of the three extra day policy to cases where the item was served under Rule 5.
The Committee's discussion of amendments to Rules 4 and 6 was prompted by the Comstock court's decisions related to service of a notice under statute. However, the item most commonly served under Rule 4's procedures is the summons. Amendment of Rule 6 as discussed above would prevent parties from taking advantage of the three extra day rule in answering summonses served by mail or commercial carrier.