MEMO
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 6, N.D.R.Civ.P., Time; Rule 45, N.D.R.Crim.P., Computing and Extending Time
At its January meeting, the Committee considered and approved amendments to Rule 6 and Rule 45. The amendments were based on amendments to Fed.R.Civ.P. 6 and Fed.R.Crim.P. 45, which were amended, effective December 1, 2005.
Mr. Kuntz has suggested that the Committee take another look at these rules. His email is attached. He explains that the change to the federal rules was substantive because they decided to use the word "after" instead of "to" when indicating how the three days for mailing should be added to a prescribed period.
The Committee dealt with the issue of how the extra three days should be counted in 2000 when deadlines were changed in the civil rules. The Committee decided to extend the time a motion with a 10-day answer deadline must be served before a hearing to 18 days, which accounts for:
-- service of the answer brief one day before the hearing
-- ten days to prepare the answer brief
-- four days for excluded holidays and weekend days
-- three days for service by mail
The Committee's discussion of the 18-day period is included in an attached minutes excerpt.
The Committee's decision to adopt an 18-day period suggests that it contemplated the three days being added after the 10-day periodif the three days were added to the 10-day period, it would become a 13-day period and weekends and holidays would need to be counted rather than excluded.
The Committee may wish to discuss what approach to counting the three-day period should be taken and whether additional changes to Rule 6 and Rule 45 need to be made to clarify the intent of the rules. The Committee may also wish to take another look at the first draft of the changes to Fed.R.Civ.P. 6, which is attached. It is possible that the lengthier federal first draft language was more clear than the terse language ultimately approved.
Potential options are:
Using the language already approved by the Committee: "Whenever a party has the right or is required to do an must or may act within a prescribed period after service of a notice or other paper and the notice or paper is served and service is made by mail or third-party commercial carrier under N.D.R.Civ.P. 5, 3 days must be three days are added to the prescribed period."
Using the new federal language: "Whenever a party has the right or is required to do an must or may act within a prescribed period after service of a notice or other paper and the notice or paper is served and service is made by mail or third-party commercial carrier under N.D.R.Civ.P. 5, 3 days must be three days are added to after the prescribed period."
Using the federal first draft language: "Whenever a party has the right or is required to do an must or may act within a prescribed period after service of a notice or other paper and the notice or paper is served and service is made by mail or third-party commercial carrier under N.D.R.Civ.P. 5, 3 days must be three days are added to after the prescribed period would otherwise expire under subdivision (a)."
Another question raised at the January meeting was whether numbers should be spelled out in the rules. The Legislative Drafting Manual is schizophrenic: it says spell out all numbers in statutes, but spell out only numbers from one to nine in resolutions. The Dictionary of Modern Legal Usage, which was put together by the person who wrote the style guidelines for the federal rules, says to spell out numbers from one to ten. Yet, in both Fed.R.Civ.P. 6 and Fed.R.Crim.P. 45, the term "3 days" is used. The Committee may wish to decide what approach to take for Rules 6 and 45 as well as for future rules the Committee addresses. Excerpts from the above-cited reference books are attached.