RULE 45. COMPUTING AND EXTENDING TIME
Computation Computing Time. In 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,
the designated period of time that begins to run may not be
included 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 the last day of the period
so computed must be included, unless
it is a Saturday, a Sunday, or a legal holiday,
in or day on which weather or other conditions
make the clerk's office inaccessible. When the last day is excluded, which event
runs until the end of the next day which that is not a Saturday,
a Sunday, or a legal holiday
or day when the clerk's office is inaccessible. When a period of time prescribed
is less than 11 days, intermediate Saturdays, Sundays, and legal holidays must be excluded
in the computation.
(4) Facsimile Service. Service by facsimile transmission must be completed by
receiver's time, on a weekday
, which that is not a legal holiday, or
service is considered
made on the following weekday which 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.
Enlargement Extending Time.
(1) In General. When an act
is required or allowed to must or
may be done at or within a
specified time, the court on its own may extend the time, or for good cause
shown may do
so on a party's motion made:
at any time in its discretion (1) with or without motion or notice, order
enlarged if a request for enlargement is made before expiration of the
period originally prescribed or as previously
extended by a previous order time expires , ;
(2) (B) upon motion made after
expiration of the specified period permit the act to be done
if the failure to act was the result time expires if the party failed to act because
neglect ; but.
the The court may not extend the time
for taking any action under
N.D.R.Crim.P. Rules 29, 33, 34, 35, and 37, except to the
extent and under the conditions
as stated in them those rules.
(c) Unaffected by Expiration of Term. The period of time provided for the doing of
or the taking of any proceeding is not affected or limited by the continued existence or
expiration of a term of court. The continued existence or expiration of a term of court in no
way affects the power of a court to do any act or take any proceeding in any criminal action
which is pending.
(d) For Motions; Affidavits. A written motion, other than one which may be heard
and notice of the motion must be served at least 18 days before the motion may be heard,
unless a different period is fixed by rule or court order. A party may apply ex parte for the
court to hear a motion sooner than 18 days after service of the motion. When a motion is
supported by affidavit, the affidavit must be served with the motion; and opposing affidavits
may be served not less than 1 day before the hearing unless the court permits them to be
served at a later time.
(e) (c) Additional Time After Service by Mail or Commercial
Carrier. Whenever a party
has the right or is required to must or may do an act within a
prescribed period after service
of a notice or other paper document, and the notice or
paper document is served by mail or
third-party commercial carrier, three days must be added to the prescribed period. Service
by facsimile transmission is not service by mail or third-party commercial carrier for
purposes of this rule.
Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2001; March 1, 2006.
Rule 45 is an adaptation of Fed.R.Crim.P. 45 with certain modifications. The rule is
as well, to N.D.R.Civ.P. 6, which also deals with computing
Rule 45 was amended, effective March1, 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 (c) is an adaptation of N.D.R.Civ.P. 6(c).
Subdivisions (d) and Subdivision (e)
(c) are adaptations is an adaptation of N.D.R.Civ.P.
6 (d) and (e). Subdivision (d) (c) must be construed with
N.D.R.Crim.P. 47 relating to
motions generally, N.D.R.Crim.P. 49 relating to the service and filing of papers, and
N.D.R.Ct. 3.2 relating to submission of motions.
Subdivision (d) was amended, effective January 1, 1995, to require service of a
motion, and notice, at least 14 days before the hearing. The March 1, 2001 amendment
extended the 14 days to 18 days.
Subdivision (e), which provides additional time for the exercise of a right or the
an act when service of notice is by mail, is similar to N.D.R.Civ.P. 6(e).
(e) (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 . See
as required by Rule 49(e) , and N.D.R.Civ.P. 4(k) and 5(f).
Subdivisions (a) and
(e) (c) were amended, effective January 1,
1995, to clarify time
computations when making service by facsimile transmission.
SOURCES: Joint Procedure Committee Minutes of 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 (
Computing and Extension
of Extending Time).