MEMO
TO: Joint Procedure Committee
FROM: Andy Forward
DATE: December 30, 2009
RE: Federal Time-Computation Project
The Appellate, Civil, and Criminal Rules Advisory Committees proposed amendments to Appellate Rule 26, Civil Rule 6, and Criminal Rule 45 to make the method of computing time consistent, simpler, and clearer. In addition to this, each advisory rules committee also reviewed and proposed changes to the time periods in all the rules to ensure that every deadline is reasonable and that changing the time-computation method did not have the effect of shortening existing time periods.
The time-computation project was launched in response to frequent complaints about the time, energy, and anxiety expended in calculating time periods, the potential for error, and the anomalous results of the current computation provisions.
The principal simplifying innovation is to count all days, including intermediate weekends and holidays, in computing time periods under the procedural rules. Under the previous rules, intermediate weekends and holidays were omitted when computing short periods but included when computing longer periods. Under the amended rules, intermediate weekends and holidays are counted regardless of the length of the specified period.
The advisory committees also reviewed every rule to ensure that all time periods would be reasonable taking into account the effect of changing the time-computation method. The advisory committees concluded that virtually all short time deadlines should be extended to adjust for the effect of including intermediate weekends and holidays in calculating deadlines. To further simplify time-counting, the advisory committees proposed changing most periods of less than 30 days to multiples of 7 days. The advisory committees adopted 7, 14, 21, and 28-day periods when possible, so that deadlines will usually fall on weekdays. The advisory committees’ comprehensive review of time-computation rules and the rules containing time periods resulted in proposed amendments to a total of 91 rules.
Civil Rules
The following is a summary of the amendments made to the federal civil procedure rules, and how the amendments differ from the current North Dakota rules:
Rule 6 - Time
(a) - When the period is stated in days, count every day including intermediate weekends and legal holidays. Include the last day of the period unless the last day is a weekend or legal holiday.
(b) - The reference to provisions for extending the times set by provisions in Rules 50, 52, 59, and 60, are eliminated. This provision is still in North Dakota Rule 6.
(c)(1) - The time for a party to serve a written motion and notice of hearing before the scheduled hearing date was extended from 5 days to 14 days. The time period is 18 days in North Dakota.
Rule 12 - Defenses and Objections
(a) - The time to serve a responsive pleading was extended from 20 days to 21 days. The time period is 20 days in North Dakota.
(a) - When a motion is filed, the time to serve a responsive pleading was extended from 10 days to 14 days. The time period is 10 days in North Dakota.
(e) - The time period for obeying an order for a more definite statement was extended from 10 days to 14 days. The time period is 10 days in North Dakota.
(f) - The time period for a court to act on a motion to strike was extended from 20 days to 21 days. The time period is 20 days in North Dakota.
Rule 14 - Third-Party Practice
(a)(1) - The time period for a third-party plaintiff to obtain the court’s leave to file a third-party complaint was extended from 10 days to 14 days. The time period is 10 days in North Dakota.
Rule 15 - Amended and Supplemental Pleadings
(a)(1) - The time period for amending a pleading was extended from 20 days to 21 days. The time period is 20 days in North Dakota.
(a)(3) - The time period to respond to an amended pleading was extended from 10 days to 14 days. The time period is 10 days in North Dakota.
Rule 27 - Deposition Before Action or Pending Appeal
(a)(2) - The time period for serving a notice of hearing was extended from 20 days before the hearing date to 21 days. The time period is 20 days in North Dakota.
Rule 32 - Using Depositions in Court Proceedings
(a)(5)(A) - The time period for limiting the use of a deposition against a party was extended from less than 11 days to less than 14 days. The time period is less than 11 days in North Dakota.
(d)(3)(C) - The time period for waiver of an objection to a written question was extended from 5 days to 7 days. The time period is 5 days in North Dakota.
Rule 38 - Jury Trial of Right
(b)(1) - The time period for demanding a jury trial was extended from 10 days to 14 days. The time period is 10 days in North Dakota.
(c) - The time period for another party to serve a demand for a jury trial on other factual issues was extended from 10 days to 14 days. The time period is 10 days in subdivision (d) of the North Dakota rule.
Rule 50 - Judgment as a Matter of Law in Jury Trials
(b) - The time period for renewing a motion for judgment as a matter of law was extended from no later than 10 days after entry of the judgment to no later than 28 days. The time period is no later than 15 days in North Dakota.
(d) - The time for a losing party’s new trial motion was extended from no later than 10 days after entry of the judgment to no later than 28 days. The time period is no later than 15 days in North Dakota.
Rule 52 - Findings by the Court
(b) - The time period for a party to file a motion to amend findings was extended from
no later than 10 days after entry of the judgment to no later than 28 days. The time period
is no later than 15 days in North Dakota.
Rule 53 - Masters
(f)(2) - The time period for filing objections to a master’s order was extended from
20 days to 21 days. The time period is 20 days in North Dakota.
Rule 56 - Summary Judgment
The timing provisions in subdivisions (a) and (c) are replaced by new provisions that recognize authority to set deadlines for summary judgment motions by local rule or by court order and, in default of a local rule or court order, that allow a motion to be made at any time until 30 days after the close of all discovery. The new provisions also establish default times for response and reply. In North Dakota, a party can move for summary judgment after 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.
Rule 59 - New Trials - Amendment of Judgments
(b) - The time period for filing a motion for new trial was extended from no later than 10 days after entry of judgment to no later than 28 days. In North Dakota, a motion for a new trial must be filed within 60 days after notice of entry of judgment, or within 6 months if the motion is made on the ground of newly discovered evidence.
(d) - The time period for a court to order a new trial on its own was extended from no later than 10 days after entry of judgment to no later than 28 days. The time period is no later than 15 days in North Dakota.
(e) - The time period for a party to file a motion to alter or amend a judgment was extended from no later than 10 days after entry of judgment to no later than 28 days. The time period is no later than 15 days in North Dakota.
Rule 62 - Stay of Proceedings to Enforce a Judgment
(a) - The time period for the automatic stay was extended from 10 days to 14 days. The time period is 10 days in North Dakota.
Rule 68 - Offer of Settlement
(a) - The time period for making an offer was extended from 10 days before trial to
at least 14 days before trial. The time period is 10 days in North Dakota.
(c) - The time period for making an offer was extended from 10 days before a hearing
to 14 days. The time period is 10 days in North Dakota.
Form 3 - Summons (Form 1 in North Dakota)
Twenty days was changed to 21 days.
Form 4 - Summons on Third-Party Complaint (Form 17 in North Dakota)
Twenty days was changed to 21 days.
Appellate Rules
The following is a summary of the amendments made to the federal appellate procedure rules, and how the amendments differ from the current North Dakota rules:
Rule 26 - Computing and Extending Time
(a) -When the period is stated in days, count every day including intermediate weekends and legal holidays. Include the last day of the period unless the last day is a weekend or legal holiday.
Rule 4 - Appeal - When Taken
(a)(4)(A)(vi) - The time period to file an appeal was extended from 10 days to 28
days. The time period is 15 days in (a)(3)(A)(vi) of the North Dakota rule.
(b)(1)(A) and (b)(3)(A) - The time period for filing a notice of appeal in a criminal
case was extended from 10 days to 14 days. The time period is 30 days in North Dakota.
Rule 25 - Filing and Service
(c)(1)(C) - The reference to “calendar days” became references to “days.” North Dakota uses the phrase “calendar days.”
Rule 31 - Filing and Service of Briefs
(a)(1) - The time period to file a reply brief was extended from 3 days before argument to 7 days before argument. The time period is 3 days in North Dakota.
Criminal Rules
The following is a summary of the amendments made to the federal criminal procedure rules, and how the amendments differ from the current North Dakota rules:
Rule 45 - Computing and Extending Time
When the period is stated in days, count every day including intermediate weekends and legal holidays. Include the last day of the period unless the last day is a weekend or legal holiday.
Rule 7 - The Indictment and the Information
(f) - The time period to move for a bill of particulars was extended from 10 days after arraignment to 14 days. The time period is 1 day after arraignment in North Dakota.
Rule 12.1 - Notice of Alibi Defense
(b)(2) - The time period to give a disclosure was extended from 10 days to 14 days. The time period is 10 days in North Dakota.
Rule 29 - Motion for a Judgment of Acquittal
(c)(1) - The time period to file a motion of acquittal after a guilty verdict was extended from 7 days to 14 days. The time period is 10 days in North Dakota.
Rule 33 - New Trial
(b)(2) - The time period to file a motion for a new trial was extended from 7 days to 14 days. The time period is 10 days in North Dakota.
Rule 34 - Arresting Judgment
(b) - The time period to move to arrest judgment was extended from 7 days to 14 days. The time period is 10 days in North Dakota.
Rule 41 - Search and Seizure
(e)(2)(A)(i) - The time period to execute a warrant was extended from 10 days to 14 days. The time period is 10 days in (c)(1)(D) of the North Dakota rule.
Rule 47 - Motions
(c) - The time period to serve a written motion was extended from 5 days before the hearing date to 7 days. The time period is 18 days before the hearing date in North Dakota.
A copy of the changes to the federal rules is attached.